Haining v Linfox Transport

Industrial Relations Commission (NSW)|1999-10-21|Before: Peterson J

Industrial Relations Commission of New South Wales in Court Session

CITATION : Haining v Linfox Transport (Aust) Pty Ltd [2002] NSWIRComm 279 APPLICANT Robert Haining PARTIES : RESPONDENT Linfox Transport (Aust) Pty Ltd FILE NUMBER: IRC2146 of 2000 CORAM: Peterson J CATCHWORDS : Unfair contract - managerial employee - question of redundancy - written notice of termination - whether conditional - whether suitable alternative employment offered by employer - terms of employer's redundancy policy held applicable and appropriate - contract declared void - orders made. Industrial Relations Act 1996 LEGISLATION CITED : Annual Holidays Act 1944 Long Service Leave Act 1955 Brown v Dunn (1893) 6 R 67 (HL) R v Birks (1990) 19 NSWLR 677 at 686 State of New South Wales v Paige [2002] NSWCA235 Malik v BCCISA (In liq) 1997 3 All ER 1 Termination Change and Redundancy Case (1984) 8 IR 34 Westfield and Adams [2001] NSWIRComm 298 Employment Protection Act Case (1983) 7 IR 273 David Jones Ltd v Cukeric (1997) 78 IR 430 CASES CITED : Caine v LEP International Pty Ltd [1999] NSWIRComm 459, 21 October 1999 Vincent v Merrill Lynch Australia Pty Ltd [2000] NSWIRComm 160 Sheffield v Brambles [2002] NSWIRComm 3 Ruefli v Allam Bros Australia Pty Ltd [1999] NSWIRComm 471 Crossley v Colgate-Palmolive Pty Ltd [1999] NSWIRComm 72 Ross v GN Context (Australia) Pty Ltd (2000) 107 IR 1 Munro v Chubb Security Holdings Australia Limited [2000] NSWIRComm 215 Bastian v Brent [2001] NSWIRComm 316 New South Wales Rugby League Limited v Allen (1998) 83 IR 397 HEARING DATES: 02/11/2002; 02/12/2002; 02/13/2002; 02/14/2002; 05/23/2002 DATE OF JUDGMENT: 10/23/2002

APPLICANT Mr A Britt of counsel

RESPONDENT LEGAL REPRESENTATIVES: Mr A Moses of counsel

SOLICITOR Corrs Chambers Westgarth SYDNEY.

ROBERT HAINING v LINFOX TRANSPORT (AUST) PTY LIMITED

Application under s106 of the Industrial Relations Act 1996. JUDGMENT

1 The applicant, Robert Haining, commenced employment with Woolworths Limited in 1967 as a truck driver. In 1975 the respondent, Linfox Transport (Aust) Pty Limited, purchased the transport business of Woolworths and the applicant became an employee of the respondent with continuity a condition of employment. He continued with the respondent until either 29 March 2000 or 19 May 2000 (the date of termination is in issue) when his employment ended.

2 Arising from that ending of the employment the applicant has commenced proceedings under s106 of the Industrial Relations Act 1996 ('the Act') seeking orders appropriate to ground the further making of monetary orders. The monetary orders sought relate to:

· Payment for two years' notice of termination · A redundancy payment calculated on the basis of three weeks' pay for each completed year of service. · The payment of those amounts, together with annual leave and long service leave, at the total value of the applicant's employment package. 3 The circumstances of the applicant's employment were that between 1967 and 1981 he operated as a truck driver. In 1981 he was appointed a supervisor at Woolworths, Silverwater and later in that year as supervisor of the respondent's contract to deliver Coca Cola products. Then, in the latter part of 1981, he was appointed as an "on-road supervisor" to monitor vehicle movements within New South Wales. He then performed various supervisory functions until January 1993 when he was appointed a Risk Manager. In July 1993 he was promoted to the position of Manager, Relief. In this role he acted as a relieving manager at a variety of worksites. He continued in a number of management roles until September 1999. It appears that he developed a particular talent for dealing with problems arising in contracts and accordingly was regarded as somewhat of a Mr Fix-it. This role gave him mobility, freedom to work his own hours and roles which provided him with satisfaction. He was a well respected and liked employee of the respondent about whom there were no performance issues. His functions were varied and included providing security cover to family members of an executive during a particular period. This required him to live-in and to work without time limitations. Throughout this period, despite the changing nature of his duties, he retained a managerial title. His salary was $45,000 pa. At the time of the termination of employment the applicant was 63 years of age.

4 Before summarising my factual findings in the matter, I refer to a serious issue of credit raised in the matter against the applicant. It was submitted that he was an evasive, unhelpful and unreliable witness showing signs of tailoring his evidence to a perception of the legal principles at work. He was said to be careful to express answers in a way favourable to his case; to construe scenarios to support his case and to advance propositions or allegations inherently unbelievable and/or inconsistent. It was also submitted that the witnesses called in the case by Linfox gave their evidence in an honest and co-operative fashion.

5 I must say that I did not understand the applicant to be a witness who exhibited the guile asserted against him. While he tended to give the impression that he was not going to assist counsel for Linfox in being forthright and responsive, my impression was that this was motivated more from a sense of mild outrage that he was being subjected to this process. It was clear enough to me that after 33 years' service with Linfox he felt very badly done by. It is perhaps a little too much, in those circumstances, to expect a witness to be helpful and forthright in the fuller sense.

6 Equally, I have no difficulty with the witnesses called for in the Linfox case. This matter will not, in my opinion, turn on credit but, as will be seen, upon the nature of the processes the parties were undertaking and the consequences of the steps taken. In only one context do I find it necessary to prefer the applicant's evidence over that of the Linfox witnesses, concerning a conversation which occurred on 28 March 2000. The basis for that will be dealt with in due course.

7 Mr Michael Foureur was in 1999-2000 the State Representative of Linfox, that is, the highest ranking NSW executive within the Linfox organisation who would deal with Linfox-wide issues without being confined to particular contracts.

8 The applicant met Mr Foureur on or about 2 September 1999 to discuss the latter's desire to give him the job of coordinating the move of the respondent's New South Wales head office from Botany to Smithfield. The evidence establishes that prior to this meeting the respondent was considering the termination of the applicant's employment on grounds of redundancy. Mr Foureur had obtained quotes of the costs in that regard prior to the meeting so that he was aware of facts relevant to any decision to follow that course.

9 The applicant alleges that, at the meeting on 2 September 1999, Mr Foureur ('MF') had the following conversation with him: MF said: "How old are you?"

MF said: "I don't think we have a permanent position for you after January next year. I am asking you to keep this conversation confidential and not let it be known outside of this office."

10 The two had a further meeting on or about 8 September 1999 during which the applicant contends that they had this discussion:

I said: "Yes, what would be my redundancy package?"

I said: "In that case I will stop thinking about it."

11 Mr Foureur denies both of these conversations. As to the conversation on or about 2 September 1999 he deposed to his having said to the applicant this: "There is going to be a relocation of Linfox's head office and I would like you to handle that in the same way that you handled the move from North Parramatta to Botany. Following that move, at this stage, there does not appear to be an ongoing full time position available for you. I'm going to make it my business to find you an on-going full time position and we need to keep talking about that. While I will keep on looking, we need to consider the possibility that there may not be a role available for you. If a full time position cannot be found in the short term, you should take this discussion as formal notice of the termination of your employment at the end of January 2000."

12 Mr Foureur could not recall specifically having a conversation with the applicant on or about 8 September 1999 but denied that the conversation contended for by the applicant took place as alleged or at all. However, it appears from his electronic diary that he may have met with the applicant on that date.

13 A Brown v Dunn (1893) 6 R 67 (HL) point relates to these alleged conversations. It has been submitted for the applicant that since he was not cross-examined on this discussion the Commission should accept his version of the conversation. Counsel for the applicant did cross-examine Mr Foureur about it and put various denials to him. Counsel for the respondent has argued that the conflict in the evidence was apparent on the affidavits and, in any event, the subject matter thereof does not relate to the issues of unfairness which have been argued.

14 The rule in Brown v Dunn is a rule of fairness (see Gleeson CJ in R v Birks (1990) 19 NSWLR 677 at 686). There it was stated that the purpose of the rule is to ensure that the witness whose evidence is to be contradicted is given a fair opportunity to advance his version. Here, save for the reference to consideration of retirement, it appears little turns upon the conflict in the evidence as to this conversation. However, it is, in my view, insufficient to leave the evidence in a state where the conflict is merely raised and left unattended in affidavit form. The rule of fairness is directed towards the witness but for the obvious and seemingly unstated purpose of permitting the court, before which the evidence is given, to consider the conflicting versions in the evidence, the explanations therefor, the demeanour and other relevant aspects of the giving of evidence for the particular purpose of determining whose evidence, on the point in conflict, is to be accepted. Unless the evidence of a witness is totally rejected on the basis of a lack of credit, the fact that the witness may be accepted on one aspect of evidence and rejected on another means that the conflict cannot be resolved on the papers alone. Accordingly, treating the conflict as raised sufficiently on the papers is only the first step towards a resolution.

15 On 15 October 1999 the applicant received a letter in the following terms: Dear Robert,

Recent discussions between us have centred on your ongoing full-time employment with Linfox.

At our meeting on 2 September 1999, I explained to you that if a full time position in our business could not be found in the short term, then you should take the discussion as formal notice of finalisation of your employment with Linfox at the end of January 2000.

This remains the case today, however you are now reporting to myself in the shared facility NSW area and will be involved in our move from Botany to Smithfield as well as the CUB Clyde Warehouse security area. It is hoped that this position at CUB may become permanent but this will not be known for several months.

I would like to take this opportunity to point out that this situation in no way reflects on your abilities or the high regard in which you are held by Linfox. I look forward to working with you over the next few months and hopefully into the future.

Mike Foureur General Manager, Bulk & Resources.

16 The applicant contends that on 25 February 2000 he was informed at a meeting with Mr Foureur that his last day of employment was to be Wednesday, 29 March 2000. The letter of 8 March 2000 is consistent with that position. That letter was as follows:

This letter serves to confirm our conversation recently in regard to your cessation of employment with Linfox.

In line with the letter I sent you on 15 October 1999, I have been using my best endeavours to find you a full time on going position with Linfox. Although I will continue looking, to date, I have been unable to do so.

As agreed at our meeting your last day of employment with Linfox will be Wednesday 29 March 2000. I have requested an entitlement calculation to be done and I will forward this to you as soon as possible.

Robert, I would like to again take this opportunity on behalf of Linfox to thank you for your valuable contribution over the years and wish you well in the future.

Mike Foureur State Representative General Manager, Bulk & Resources

17 The applicant deposed to having met Mr Foureur on 25 February 2000 and having the following conversation with him:

MF said: "I have not been able to find you another position. You have been fortunate in that the move went past the end of January. We will make your last day Wednesday 29 March 2000, as it will tie in with the Linfox month. In the meantime I want you to show Maryanne and Amber what you do so they can be the allocated persons to do what you (sic)."

MF said: "Goodman Fielder have moved to a new warehouse at Ermington and the contract manager has asked for you to assist setting up the warehouse. Will you help him?"

18 Mr Foureur accepts this conversation except for the first two sentences and deposed to these words being used in substitution therefore: MF: "While I have not been able to find you a position as yet, I will continue looking for you and will continue right up until the end of March."

19 The juxtaposition of the letter of 8 March and the conversations contended by both Mr Foureur and the applicant show that in essential respects they were ad idem. The last date of employment was identified as 29 March 2000 and the search for another position would continue.

20 On 4 and 5 March Linfox conducted an outdoor management program at Kangaroo Valley in New South Wales which were attended by approximately 60 managers. Mr Foureur conversed with numerous Linfox New South Wales managers about any position available for the applicant. No suitable positions were identified. The applicant deposed to not having received an invitation to the program although he had been invited to earlier such programs. Mr Foureur took the position that this was the first of its kind and no such invitation was appropriate. I do not consider this difference is of any significance in the proceedings.

21 On 6 March again the applicant and Mr Foureur met and again their versions of the conversation differ. Again, 29 March 2000 appears to have been accepted as the date of termination subject to any other suitable position coming available. The applicant's position in the conversation was that he was wishing to obtain the quantification of his severance settlement whereas Mr Fourer seems to have understood the matter to merely relate to his "entitlement calculation". I consider the applicant's version of this conversation the more probable and acceptable version.

22 Subsequently, a farewell luncheon was organised by the Personal Assistant to Mr Foureur. The applicant subsequently asked that the function be cancelled because he was upset at the treatment he had received from Linfox and requested that moneys be donated to St Josephs Hospital at Auburn rather than be spent on a lunch. This proposition was accepted. On 15 March 2000 the applicant received a draft entitlement calculation which included termination payments but no redundancy payment.

23 On 16 March 2000 Mr Foureur attended a dinner as part of a Linfox management meeting held in Victoria. During the dinner he said words to the effect "Does anybody have any positions available in Sydney for Robert Haining?". Ray Gamble, the General Manager Fleet and Maintenance, said "I have a position available at the NSW workshop for a Purchasing Officer." That conversation continued: MF: "I think that this may be suitable for Robert. Could you expand on the role?"

RG: "The role covers purchasing of spare parts, collation of data in regard to fleet management and possibly some site inspection work. What sort of money is Robert on?"

RG: "That should not be an issue. If you wish to progress the matter you should talk to Alex Brincat, the NSW Fleet Manager."

24 Mr Foureur also conversed with David Spencer as follows:

MF: "Do you know of any positions available in Sydney that may suit Robert Haining?"

DS: "Matthew Clarke has some positions at SOCOG available you should speak to him in regard to the details."

25 Mr Foureur later had a conversation with Matthew Clarke who, after discussing the possibility of Mr Haining, said "You should put him in touch with Derek Leslie. Derek will have all of the details of the positions available." Mr Foureur agreed to do that.

26 On 20 March Mr Foureur agreed with his personal assistant that a farewell function should be organised because he felt that if no continuing employment could be found it would be wrong not to have a function for a person of such long standing as the applicant.

27 On about 22 March Mr Foureur spoke to Alexander Brincat, the Fleet Manager of the Division, about the purchasing officer position which had been discussed with Mr Gamble in Victoria. Mr Brincat identified the position as follows: AB: "Well, briefly, some of the tasks involved in the position include spare parts purchasing, vehicle site inspections and time maintenance agreement, amongst other things."

MF: "Can you prepare a position description? If you need to check any financial details, you should check with Greg Thomas."

28 On 24 March the applicant again met Mr Foureur. The two versions of this conversation are very similar. I have selected Mr Foureur's version because it makes two points not made by the applicant, namely the choice between a car allowance or a company vehicle, which the applicant contends was advanced only as a car allowance proposal and also the possibility of extending the termination date beyond 29 March which the applicant disputes was said. Mr Foureur puts the conversation this way:

MF: "Robert, you will be offered a position in the Linfox workshop later today. The job involves controlling and maintaining vehicle servicing, licensing of vehicles, accident reports etc, and vehicle cleanliness. You may want to think about whether you would prefer a car allowance or a company vehicle. The car you are currently driving could be purchased at an attractive price. Wait until you get the draft offer and then we can go through all of that. When you receive the draft offer, have a think about it over the weekend and then get back to me at some stage early next week. In regard to the 29 March referred to in my letter, don't worry about that, we can extend that, it is not immovable. The main thing is that we get you into this position.

RH: "I will look at the position over the weekend."

29 On 24 March the applicant approached Greg Thomas and Mr Brincat about accessing details of his redundancy package. They had the following conversation: GT said: "We don't have a redundancy package, that is why you were given the first letter and this is the job we are offering you".

RH said: "I am not retiring or leaving, you are sacking, terminating or finishing me, therefore you are making me redundant. I want to know what my redundancy package is so I can compare it to the job on offer."

GT said: "We don't have a redundancy package that is why you were given the first letter and why we have made this offer."

30 On 28 March 2000 the applicant again met Mr Foureur and indicated that he would not accept the job as a purchasing officer/store supervisor. He said: The job is below my abilities and capabilities. I am a Manager, not a Supervisor and I have not yet been given a redundancy package to compare with the job offered. The job is that of a workshop storeman and the specifications are extremely vague.

31 Mr Foureur responded: Robert, you are being offered a position and not redundancy. Linfox will pay redundancy only as a last resort after all avenues for redeployment have been exhausted. As I have consistently told you, I will do everything I can to find a position for you in accordance with our original conversation. I strongly disagree that the job is below you abilities and capabilities. The job is much more than a workshop storeman and I think that you should have another discussion with Alex Brincat in order that you can more fully understand the depth of the position.

RH: You are reducing my package. I am on a package of $65,000.

MF: Robert, that is not true. If you look at the offer, you will also see that there is no reduction in your salary package at all. You are being offered a salary plus a vehicle plus superannuation and there is no reduction. I will call Alex Brincat now to clarify the position for you.

MF: Alex, Robert is with me in the office. He is saying in regard to the job description that it is that of a storeman and that the specifications are vague. Could you talk to him and answer any of his concerns.

32 The applicant then said to Mr Foureur: I will not be able to make any decision about accepting the job offered until I am able to compare the package with a redundancy package to which I am entitled as I have not resigned from employment but am being sacked, finished up or terminated. The Manager of Human Resources of Linfox, Tony Olthof, happened to walk past Mr Foureur's door, who asked him to join the meeting. The three persons then had a conversation regarding the nature of the offer that was being made to the applicant and his concerns about it and also the different conditions which he considered attached particularly with respect to the car. This culminated, according to Mr Foureur's version of the conversation, with Mr Olthof indicating "I'll review the position description". During the course of the conversation Mr Foureur also mentioned the possibility of some positions at SOCOG in warehouse supervisory roles. The conversation continued: MF: "I've spoken to Matthew Clarke of SOCOG and we've arranged for you to talk to Derek Leslie about the positions. You should give him a ring at SOCOG in Ultimo and arrange a time for tomorrow."

RH: "I have a letter of termination effective 29 March."

MF: "You should forget about finishing on the 29th. We have several options available here. That date can be moved. It is not set in concrete. We can decide together whenever that date might be. We've got a lot to go on with here. You let me know how you go in the meeting with Derek Leslie tomorrow."

33 Mr Olthof's version of this conversation is somewhat different but the crucial part for present purposes is as follows:

MF: "There may also be an opportunity for you at SOCOG at Ultimo which I'd like you to look at.

RH: I am not rejecting any job at this point in time. I would be happy to look at it.

MF: "Okay then, I will try to arrange an interview for you tomorrow or you can arrange it. You should forget about finishing on the 29th and continue your employment at least until we have finished this process of dialogue."

MF: "Alright then, well it is clear that you won't be finishing tomorrow. I will arrange for a meeting between you and Derek Leslie at SOCOG. Could you get back to me and let me know how you go with that?"

RH: "Ok". 34 Shortly afterwards a facsimile arrived from the applicant's legal advisers, Toomey Pegg Drevikovsky, which set out a history of the applicant's employment and the discussions between the parties between September 1999 and March 2000 and asserted that the contract of employment was unfair in particular respects. It also sought 12 months salary in lieu of notice calculated on the total remuneration package; 99 weeks salary as a redundancy payment, calculated on the same basis; and the recalculation of the applicant's leave entitlements with reference to total remuneration package and not base salary.

35 The letter was raised by Mr Foureur and Mr Olthof with the applicant in the following conversation (as per Mr Foureur):

MF: "What is this all about? I have just received 6 pages of demands from a law firm."

MF: "Why didn't you tell us that you had gone to legal people? It would have been the thing to do."

RH: "Because I have been terminated and I am entitled to a redundancy. You keep telling me Linfox don't pay redundancies and that is not right."

MF: "We've just agreed that you haven't been terminated, that that date is not set in concrete, that there is a lot more to talk about and you are going to attend an interview at SOCOG. And, I've never told you Linfox does not pay redundancies. I did tell you that Linfox has a policy of redeployment before redundancy. I can't understand why you've done this. It's obvious to me that you've been planning this. Why have you asked your lawyers to send us this when you have just agreed to go to an interview with Linfox's SOCOG division and extend the date of your employment with us?"

36 On 29 March the applicant telephoned Mr Foureur and they had the following conversation: MF: "We left it yesterday that you were going to go the interview. Why haven't you gone?"

RH: "Because no mention was made of it after the first fleeting mention, I thought it was disregarded as an offer."

MF: "But what about the other position we have offered you?"

RH: "We've already discussed that and it isn't suitable."

MF: "Does this mean that you are not coming back to work?"

RH: "As I said yesterday, please talk to my lawyers."

37 There then occurred an exchange between the parties of numerous correspondences.

38 In a letter to dated 17 May 2000 the applicant responded to a letter of 11 May from Mr Olthof in these terms: I am at a loss to understand your claim that I will have abandoned my employment if I do not contact Mr Foureur by close of business on 19 May. Since as you are well aware my employment was terminated by Linfox by way of correspondence dated 8 March 2000 with effect from 29 March 2000.

As you are also well aware in accordance with this letter my employment ceased on that day.

I remind you of your obligations to pay me the following monies on my termination:

(iii) Payment of an appropriate sum in lieu of notice; and

I also look forward to also receiving a separation certificate from you.

39 On 19 May Mr Olthof wrote in response as follows:

I am disappointed that you have chosen not to contact Mr Mike Foureur after we have made numerous requests for you to begin a dialogue, in order that we may resolve the outstanding issues regarding your ongoing employment with Linfox.

It is therefore reluctantly that we concede to your request to terminate your employment with Linfox, effective from Friday, 19 May 2000.

I will organise for the Payroll Manager to calculate your outstanding entitlements with respect to annual leave and long service leave.

A cheque for the monies owed along with details of how these amounts were calculated will be forwarded to you in due course.

TONY OLTHOF General Manager, Human Resources.

Conclusions 40 It will be readily seen that Mr Olthof's letter dated 19 May 2000 makes an attempt to give the circumstances a character which they cannot possibly bear. At no stage was the applicant making a request for termination of his employment but rather he had been asserting that his employment ended on 29 March 2000.

41 This matter essentially turns upon three events. The first is the discussion between the applicant and Mr Foureur in September 1999 which foreshadowed the possibility of the former's termination. The second is the provision by Mr Foureur to the applicant of the letter of 8 March 2000. The third involves the events of 28 March 2000 in which discussions occurred between the applicant, Mr Foureur and Mr Olthof and, in particular, raises the question whether there was an agreement to extend the period of employment beyond 29 March, as Mr Foureur and Mr Olthof contend but the applicant denies.

42 The matter seems to me to come down to the resolution of the question whether the notice given to the applicant to end his employment on 29 March was varied by mutual agreement between the parties in the conversation held between the applicant, Mr Foureur and Mr Olthof on 28 March. The position at common law is clear. Notice given by one party may not, except in very limited circumstances, be withdrawn unilaterally. The exception is notice given in the heat of the moment (see State of New South Wales v Paige [2002] NSWCA235 per Spigelman CJ at par. 283 et seq).

43 Here there were three participants in a conversation where one of them says that the applicant accepted, by his positive indication "OK", that the notice due to expire on 29 March 2000 would be regarded as suspended and the other was unsure whether he verbally agreed to this or nodded his head in assent. The applicant vehemently denies that he made such an indication.

44 It is also important to bear in mind that the applicant was at this point aware that his legal advisers were in the process of making a demand in relation to the termination. It seems to me highly improbable that, in the face of the preparatory work which had been undertaken to produce the forthcoming letter of demand, the applicant would have so readily altered his stance from that which he had earlier adopted. That earlier position involved his persistent desire to understand the alternatives which were opening up to him, so that he could make an assessment of any offers which were being made and a comparison between the offers and what he expected was his rightful entitlement to a redundancy payment in the event he was redundant. This was no more than the consideration of whether or not any alternative employment being offered to him was suitable.

45 The concept of suitable alternative employment is well entrenched in redundancy pay schemes, as a provision which disentitles the employee to any redundancy payment upon the making available by the employer of such an alternative.

46 While the idea of an offer of suitable alternative employment was not applicable here through an award or contract provision, I consider the same test ought be applied here. It was not suggested that Linfox had any contractual right to alter downwards the nature and status of the applicant's employment other than with his agreement. It follows that, at best, any offer of alternative employment would need to be equivalent in general terms in order to avoid the consequence that the termination of the applicant's position would constitute a termination of the employment.

47 In one sense, the applicant was putting the cart before the horse in that he was seeking to make the comparative assessment to which I have referred. Strictly, any right to receive redundancy pay arises only upon a termination where the employee is redundant; it follows from the fact that no suitable alternative employment has been provided. The two positions of redundancy v. suitable alternative employment are not options from which the employee is free to choose. Thus the proposition advanced by the applicant to the effect that Linfox had failed to provide him with a statement of his entitlements including redundancy payments and payments in lieu of notice, in order that he could weigh up his options, cannot be accepted.

48 What would have been objectively suitable for the applicant is a matter to be determined in the light of all the material in the case. The significance of the question seems to me appropriately to be considered as one which dictates whether or not the applicant is now to be viewed as then having been truly redundant to Linfox at his level of employment.

49 The applicant formed the view that the alternative offers of employment were either positively unsuitable, as in the case of the purchasing officer/store supervisor position, or indeterminate in relation to the possibility of any position in the SOCOG operation. If these conclusions by the applicant were justified the result must be that he was not offered any position which he was bound to take, the rejection of which would prevent his claiming that he was truly redundant to Linfox. That would, of course, have raised a substantial bar to his claim for a redundancy payment.

50 In considering the question of the suitability of the alternative employment offered to the applicant, I do not intend to concentrate to any degree upon the issue with any position at SOCOG because it was not crystallised either between the parties at the time or in the course of the proceedings. The applicant was entitled to treat the suggestion of a possible position as no more than a suggestion. It was properly the responsibility of Linfox to formulae any offer in that regard. This it did not do.

51 A convenient starting point is the nature of the position/s occupied by the applicant up to 29 March 2000. The nature of the work earlier identified herein would seem to encompass the work of managing particular projects. The applicant was afforded a managerial title although his salary was not at a particularly high level. He also attained the benefit of a fully funded company vehicle. The positions he occupied did not entail his direct supervision of employees obligated to report to him. He was thus not managing people so much as managing activities.

52 I consider the applicant is entitled to be credited with a characterisation of his employment which matches the description granted him by Linfox, namely, a managerial position.

53 The alternative position offered by Linfox was the subject of evidence by Alexander Joseph Brincat, the Fleet Manager of the Bulk and Resources Division of Linfox. Mr Brincat is responsible for the administration of Linfox's Fleet Workshops in New South Wales and managers approximately 20 employees. One of those is the Workshop Controller.

54 He deposed to a conversation with Mr Foureur on or about 22 March 2000 when an enquiry was made of him of any vacant positions that might be available in the Fleet Maintenance Workshop, to which Mr Brincat replied "Yes we have a storeman's position vacant at the moment". Mr Foureur asked Mr Brincat to discuss the matter with the applicant. Mr Brincat then drafted a job specification for the position. This led in due course to an offer of employment being conveyed to the applicant under cover of a letter from Mr Foureur dated 24 March 2000 for the position of Purchasing Officer/Store Supervisor which was described as reporting directly to the Workshop Controller. The job specification provided with the offer included a number of functions as follows:

Job Description : Purchase requirements for the fleet maintenance workshops and business contracts on an as required basis. Supervise store, ensuring that proper inventory levels are maintained and that stock usage is properly recorded and documented. Maintain store in a proper and orderly condition, stock shelves appropriately marked with identification numbers. That stock is allocated to correct storage location in a timely manner when delivered from supplier. Manage the procurement of tyres on an as required basis through tyre supply contracts in place. Liase (sic) with tyre suppliers in ensuring that proper documentation for both purchases and credits are maintained on a daily basis. Conduct tyre audits for all NWR and Scrap Tyres on a regular basis. Prepare stores area for stocktake on an as required basis. As directed, organise on the spot stocktake checks. Ensure that goods as ordered, are supplied. Maintain a workshop inventory record of all workshop equipment and special tools. Ensure that special tools are maintained in an operational condition. Ensure that all special tools are collected from technicians on a daily basis, also ensuring that all tools issued are recorded in an issue registar. Ensure that prices as quoted, are charged for all goods and service purchased. Ensure that all date inputting is carried out on a daily basis. Maintain regular contact with suppliers to ensure that the best pricing structure is maintained for Linfox at all times. As directed assist workshop staff with general administrative duties on an as required basis.

Working Hours : Working hours will be as directed by the workshop manager between the hours of 0600 and 1800 hours.

Reporting : This position answers directly to the workshop controller. It is a requirement of the person holding this position to liase (sic) closely on a daily basis with the workshop controller. This position requires that the occupant is able to work unsupervised and be able to show a high level of integrity at all times. The person must be familiar in the use of all facets of computer operations.

55 In discussing the position with the applicant, Mr Brincat said "The position is more than just a storeman and the position title alone will tell you that".

56 Mr Brincat deposed to having a further conversation with the applicant on or about 28 March when the applicant said: RH: "There are a couple of things that I am uneasy with. I don't think that this position is managerial myself.

AB: But it is, maybe the wording of the title 'Purchasing Officer/Store Supervisor' is misleading but it is a managerial position.

57 On or about 29 March 2000 the applicant telephoned Mr Brincat and they had this conversation:

AB: "Look that's no problem, on the job training and assistance will be provided."

58 They had a further conversation later that day when Mr Brincat saw the applicant at the Homebush Workshop. The conversation was:

RH: "I'm here to drop my car off. It's nothing against you, it's just not the sort of job I can do. I'm concerned I won't be able to do all the duties required."

AB: "As I said to you before, on the job training and assistance will be provided. If you change your mind let me know. The job is yours if you want it."

59 I note that the applicant disputes that he expressed concern that he would not be able to do all of the duties required.

60 I consider the description of the position offered to the applicant is an accurate guide to its nature and status. It seems to me to be quite beyond debate that the position description establishes that the position was one which was not managerial in nature but more functional. While some of the duties such as negotiating with suppliers might be thought to be of a higher level of duty, the position description included reference to functions more in accord with Mr Brincat's original description of the job as "a storeman's position". For example, the obligation to maintain the store in a proper and orderly condition etc., ensuring goods as ordered are supplied, maintaining a workshop inventory record of all equipment and tools. These seem to me to be basic functions more in the nature of storing work than work which could genuinely be viewed as managerial. Indeed, on my analysis of the job description no function therein would properly be described as managerial. The reporting to the Workshop Controller, who reported in turn to Mr Brincat, seems to me perfectly consistent with that perception of the level of the position being offered.

61 The respondent's case included the proposition that as the Linfox managers had a genuine desire to retain the applicant in employment and that this in some way meant that an onus shifted to the applicant to establish a repudiation or constructive dismissal by Linfox. This view can only be explicable on the basis that the notice given on 8 March 2000 did not take effect. However, after an expression of intention to continue looking for a full-time ongoing position, Mr Foureur's letter is quite precise: "As agreed at our last meeting your last day of employment with Linfox will be Wednesday 29 March 2000". It went on to thank the applicant for his valuable contribution and wish him well for the future.

62 Counsel for Linfox, in the course of cross-examining Mr Haining, obtained the agreement of the witness to the following series of answers in relation to the letter of 8 March:

Q. And that when he wrote the letter to you dated 8 March 2000 it was on the proviso that your employment was being terminated on 29 March if alternative employment could not be found for you? A. Yes.

Q. You understood that, didn't you? A. Yes.

Q. So you understood that a precondition of your employment coming to an end on 29 March was if Linfox could not find you an alternative position, isn't that right? A. Yes.

63 I do not accept these answers as establishing any more than that the parties were free to accept, after the discovery of a suitable alternative position, that the notice of termination would not take effect on 29 March 2000. I did not understand the witness to be accepting that "any" alternative position would be appropriate or that the notice itself was conditional. It is obvious that had a managerial position of a suitable kind been made available to the applicant, his primary desire would have been met and the ensuing litigation would probably have been obviated.

64 There was an unbreakable link between the notice and its ceasing to operate and the provision of a suitable alternative to the applicant. Failure in the latter necessarily meant the coming to a conclusion of the former.

65 Because of the inconsistent position in the evidence called for the employers in relation to the conversation between Messrs Foureur and Olthof and the applicant on 28 March 2000 and the uncertainties inherent in that evidence as to the means by which the applicant communicated his assent to a suspension of the notice of termination, and taking into the account the applicant's evidence and the way in which he gave it, I have come to the conclusion that I should prefer the position that there was no positive agreement between the parties reached in that discussion which would have obviated the expiry of the notice period on 29 March. On my assessment of the evidence the company representatives formed an impression of the applicant's intention which the applicant did not intend to, and did not, convey.

66 This was not a case about reclassification which brought about the termination of a contract but a termination upon written notice which took effect in the absence of any reasonable alternative being offered.

67 I reject the submissions made for Linfox to the effect that there was some lack of fidelity and good faith (Malik v BCCISA (In liq) 1997 3 All ER 1) in the applicant's dealings with Linfox in respect of alternative duties. The applicant was an employee of long-standing who had received notice of termination of employment to take effect on 29 March 2000 with only the mere possibility of some alternative emerging, who had been supplied with his termination entitlements confined to outstanding annual leave and long service leave. That he might have been a little soured by the experience and even sceptical about any last minute offers from Linfox would not be surprising.

68 I also reject the proposition advanced by Linfox that the applicant's failure to accept the alternative position offered amounted to a failure to mitigate his loss. Had the position been one which constituted suitable alternative employment the position might be otherwise, at least in the sense that the applicant would have difficulty establishing the necessary unfairness in his contract. Mitigation would have less relevance but might in those circumstances constitute an additional support for the defence.

69 I turn to the matter of the relief to which the applicant is entitled. I am satisfied that the applicant's contract of employment was unfair within the meaning of the Act in that it permitted the applicant to be terminated in the circumstances the subject of this judgment without providing recognition in an appropriate way of the concepts of notice and redundancy pay.

70 The provision of 21 days' notice for a person with 33 years' service working at a managerial level, although not a high one, is obviously unfair. Looking at the concept of notice in isolation I would have thought the requirement for reasonable notice would require a minimum of three months' notice. Service of 33 years is a significant factor in that matter. However, notice needs to be considered, in this case, in the context of the Linfox Redundancy Policy. That policy provides for a minimum notice of termination or pay in lieu thereof to be: "1. One month (or such greater period as set out in the employee's employment contract), subject to a minimum of five weeks where the employee is aged over 45 and has two or more years continuous service."

71 The applicant received three weeks' notice by his letter of termination, and perhaps a little more orally but not five weeks in total, which obviously is not in conformity with the policy. At the time the notice was given, the appearance of redundancy was relatively complete.

72 As to redundancy pay itself, the Linfox policy provides: "2. A severance payment is to be paid, calculated on the basis of 4 weeks' base pay plus 3 weeks' pay for each year of continuous service, to be paid on pro rata basis for completed days. Such benefit is to be a maximum of 52 weeks' pay. "Pay" means the salary component of remuneration for superannuation purposes."

73 I consider it inappropriate to approach this case as though the concepts of notice and redundancy pay were a clean sheet. As I have noted, the applicant persistently pursued the identification of what he thought would be his entitlement under this policy. Had it then been identified, and paid, the applicant's position viz-a-viz s106 proceedings would have been markedly different. It would have been necessary for him, if he were so disposed, to pursue an approach under the section to the notice and/or redundancy payment provisions. No such approach has been made by the summons for relief although submissions seeking to support the proposition that the redundancy policy produces unfair results were made. I consider Mr Olthof's evidence to have dispelled the proposition that the policy had been applied inconsistently in other cases. The particular circumstances of those cases distinguish them from the present case. Some were dependent upon a policy applicable in earlier employments and another in particular involved the circumstances of an industrial dispute which could have no relevance here.

74 I consider it appropriate to approach the issue for determination with respect to notice and/or severance payment in the light of the company's policy and to consider whether or not the application of it now would render a just result in the applicant's case.

75 As to the severance payment I am of the view that nothing which has been, or could be, advanced in the applicant's case demonstrates an unfairness in the policy. Four weeks base pay plus three weeks per year of service, while not at the peak of my experience, is certainly not ungenerous. The cap on entitlement of 52 weeks equally does not in my view make the policy unfair. The applicant has submitted that the minimum level of redundancy payment which should be awarded by the Commission to the applicant is one equivalent to that payable under the Linfox policy. However, it was also submitted that other aspects of the policy are unfair. For example, the applicant with 33 years' service is treated in an identical fashion to an employee with 16 years' service, as a result of the cap. It was submitted that the longer service employee has a greater loss of non-transferable credits and entitlements (such as sick leave and long service leave) than the 16 year employee and will suffer greater inconvenience and hardship as a result of the termination (see Termination Change and Redundancy Case (1984) 8 IR 34 and Westfield and Adams [2001] NSWIRComm 298). However, no demonstration has been made that the capped payment is inadequate in itself to achieve the purpose of a redundancy payment. After all, capping has been an intrinsic feature of the major redundancy cases (see for example the Termination Change and Redundancy Case (ibid) and also the Employment Protection Act Case (1983) 7 IR 273).

76 The reality is that the Linfox Redundancy Policy applies a standard which clerical and administrative employees generally have not achieved through industrial arbitration. I consider it would be pedantic and potentially unjust to the respondent to seek to impose in this context a standard which has no other objective indicia which support it.

77 It remains to consider the rate of payment at which the redundancy of notice payments should be made. The applicant conceded that the removal of the cap on the redundancy policy would make it appropriate that the redundancy payment remain at the base salary level of $45,000 per year. However, if the Commission retained the cap, it was submitted the redundancy payment should be based upon the applicant's annual remuneration which incorporated the value of a car and home telephone.

78 No rationale for that approach was, nor I would have thought could be, advanced.

79 There is no objective standard of application on this issue. Each case needs to be determined according to its own circumstances. Making provision for a car and home telephone, the effect of which would elevate the annual rate of salary from $45,000 to approximately $65,000 and also the Superannuation Guarantee Levy, does not have anything particular to commend it in the circumstances of the case. The car was provided for use at work, not solely or principally for personal use. It is thus not comparable to a case where a car is provided as part of a remuneration package.

80 Counsel for the applicant advanced a number of cases as illustrations of redundancy and notice payments being assessed at a level above base salary. These were David Jones Ltd v Cukeric (1997) 78 IR 430, Caine v LEP International Pty Ltd [1999] NSWIRComm 459, 21 October 1999), Vincent v Merrill Lynch Australia Pty Ltd [2000] NSWIRComm 160, Sheffield v Brambles [2002] NSWIRComm 3, Ruefli v Allam Bros Australia Pty Ltd [1999] NSWIRComm 471, Crossley v Colgate-Palmolive Pty Ltd [1999] NSWIRComm 72, Ross v GN Context (Australia) Pty Ltd (2000) 107 IR 1, Munro v Chubb Security Holdings Australia Limited [2000] NSWIRComm 215 and Bastian v Brent [2001] NSWIRComm 316.

81 An examination of these cases demonstrates the variation in circumstances with which they dealt. Some of the positions of applicants were high ranking; some involved concessions by the employers that particular elements in a package were appropriate to be taken into account, or agreement between the parties. No rule appears to have been either adopted or developed in that line of cases.

82 I am not able to determine that it would be unfair that the redundancy policy applying base pay is unfair in the circumstances of the case.

83 The final claim with which I must deal is the applicant's claim to have annual leave and long service leave payments made at the higher package rate. For the reasons I have given with respect to notice and redundancy payment this is inappropriate. However, another factor arises here. Both annual leave and long service leave payments arise as statutory obligations under the Annual Holidays Act 1944 and the Long Service Leave Act 1955.

84 I accept the submissions advanced for Linfox that it cannot be unfair for it to have paid the applicant his entitlements in accordance with the provisions of those statutes. It would, at least, be inappropriate for the Commission to seek to interfere with that statutory obligation (see New South Wales Rugby League Limited v Allen (1998) 83 IR 397).

85 The applicant's receipt of three weeks' notice, contrary to the Linfox Redundancy Policy, means that he did not receive the notice to which he was entitled. I consider it would be appropriate that he should, in the ordinary way, receive either the notice provided by the relevant provision applicable to him or an equivalent payment in lieu thereof. In the ordinary case, there would be no offset given for the short notice provided; that approach commends itself here.

86 I therefore order as follows: 1. The contract of employment between the applicant and the respondent is declared void on and from 29 March 2000 except to the extent that the applicant received remuneration and benefits from the respondent or became entitled to receive such remuneration or benefits. 2. The respondent shall pay to the applicant the sum of $49,327 plus interest at the Supreme Court rate calculated from the date of commencement of the proceedings to date of judgment.

The applicant's counsel requested that costs be reserved with liberty apply. Order accordingly.

87 It is unclear to me whether the applicant was in fact paid his long service leave and annual leave payments. If not, I would intend that the orders include that matter responsively to the summons for relief.

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.

[1999] NSWIRComm 459

[1999] NSWIRComm 471

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