Humphries v Cootamundra Ex-Services and Citizens Memorial Club Limited

Industrial Relations Commission (NSW)|2003-08-20|Before: Sams DP

CITATION : Walterio Garrido and Catholic Education Office Sydney [2003] NSWIRComm 252 APPLICANT: PARTIES : Walterio Garrido RESPONDENT: Catholic Education Office Sydney FILE NUMBER: 550 of 2003 CORAM: Sams DP Termination of employment - unfair dismissal - reason for dismissal - restructure of school maintenance and groundkeeping - whether applicant redundant - whether genuine redundancy - incident with supervisor - notice to applicant - consultation and options for alternative employment - award provisions on redundancy. CATCHWORDS : Held, applicant's position genuinely redundant - no sham redundancy - incident with supervisor a coincidence - incident had no bearing on dismissal - principles of unfairness in redundancy - notice period not unreasonable - applicant paid in excess of award entitlements - applicant appealed decision - no options for alternative employment - applicant not treated unfairly in selection process - employer's obligations discharged - dismissal not harsh, unjust or unreasonable within the meaning of Pt 6 ch 2 of the Act - application dismissed. LEGISLATION CITED : Industrial Relations Act 1996 Electrical Trades Union of Australia, New South Wales Branch (on behalf of Filipe Rodrigues) and Star Electrical Co Pty Ltd [2002] NSWIRComm 297 Humphries v Cootamundra Ex-Services and Citizens Memorial Club Limited [2003] NSWIRComm 211 Huseyin Arslan and others and Berkeley Challenge (Commercial) Pty Limited and Others [2001] NSWIRComm 45 Outboard World v Muir (1993) 51 IR 167 CASES CITED : Re Application for Redundancy Awards (1994) 53 IR 419 Shop, Distributive and Allied Employees' Association, New South Wales and W D & H O Wills Holdings Ltd [2000] NSWIRComm 98

APPLICANT: Ms M Mereau (friend) LEGAL REPRESENTATIVES: RESPONDENT: Mr G McKay from the Catholic Commission for Employment Relations

JUDGMENT: - 5 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: SAMS DP 20 August 2003 Matter No IRC03/550 Walterio Garrido and Catholic Education Office Sydney Application by Walterio Garrido re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2003] NSWIRComm 252

1 Mr Walterio Garrido ('the applicant') was dismissed from his employment as a maintenance/grounds person at St Patrick's College, Sutherland ('the respondent') on 28 January 2003. The applicant had commenced full time employment at the College on 30 August 1999. He was employed under the terms of the Maintenance and Outdoor Staff (Catholic Schools) State Award 330 IG 43 ('the Award') on $563.14 per week. His duties were recorded in his statement of service as: i) Grounds maintenance ii) Building maintenance iii) Preparation of various venues (College hall, swimming pool) for College events iv) Litter collection and waste removal v) Minor repairs and service work

2 The applicant maintained that he was dismissed following a verbal incident with his supervisor on 24 October 2002 over his request for annual leave. The respondent strenuously denied that the incident had anything to do with the applicant's dismissal. Rather, it was argued that the applicant's position had been made redundant when the College decided to outsource its maintenance and groundwork. As a result, the applicant's termination of employment had been in accordance with the redundancy provisions of the Award.

3 The applicant filed a claim of alleged unfair dismissal, pursuant to s84 of the Industrial Relations Act 1996 ('the Act'), on 4 February 2003. The matter was listed for conciliation and directions on 25 March 2003. At that time, the applicant, whose first language is Spanish, was assisted by his son. Mr G McKay from the Catholic Commission for Employment Relations appeared for the respondent. Following preliminary submissions, the Commission chaired private conferences with the parties. No agreement could be reached. Accordingly, the Commission made a finding, pursuant to s87 of the Act, and issued directions in preparation for the arbitration of the applicant's claim.

4 The applicant provided an affidavit and gave oral evidence with the assistance of an accredited Spanish interpreter. The applicant attached to his affidavit a petition from students at the College. The petition asked that the applicant not lose his job.

5 The applicant deposed that in December 2001, he informed his supervisor Mr Ron Gray, of his request for two months annual leave to travel overseas (to Chile) in December 2002. He didn't fill in an application form himself because Mr Gray said he would do it. Throughout 2002 when he inquired about his leave, Mr Gray had told him not to worry - it would be fixed up. Having received no formal approval of his leave, the applicant went to the College's Administration Office on 24 October 2002 to inquire about it. He spoke to Mr John Archer, the College's Bursar and filled in an application form then and there.

6 While speaking to Mr Archer, Mr Gray arrived and asked the applicant what he was doing there. The applicant explained he was there to sort out his leave request. However, the applicant said Mr Gray responded by "yelling, swearing and calling me names as he was walking out of the office." The applicant said he then saw Mr Gray walk straight to the Principal's office. In oral evidence, the applicant conceded that he couldn't remember what Mr Gray had said to him, except that Mr Gray was angry and upset.

7 The applicant deposed that about an hour later he was called to Ms Garvan's office (the Principal) and informed that the College grounds and maintenance services were to be outsourced and he would be made redundant in 2003. He said up to this time (24 October) neither Mr Gray nor Ms Garvan had spoken to him about outsourcing his duties. He claimed that had he known, he would not have committed himself to travel overseas in December 2002. The applicant proceeded overseas on 8 December 2002 and formally ceased work on 28 January 2003 having been paid annual leave and notice.

8 The applicant claimed that the respondent failed to consult him or his Union about his proposed redundancy. At first in oral evidence he said he had never seen any work changes at the College. He then acknowledged that there was major work going on and in fact he had requested an opportunity to do it. However, this was refused. He believed it was no coincidence that he was told of his dismissal one hour after the incident with Mr Gray. He believed he was dismissed solely on Mr Gray's recommendation and without any valid reason.

9 The applicant gave certain evidence which was critical of Mr Gray. He said Mr Gray bullied him and called him "Bob." Mr Gray was not happy with the way he responded to minor repair works and preferred to allocate repair work to his tradesmen friends. The applicant found this offensive. Mr Gray did not speak to him after the 24 October 2002 and this made him feel uncomfortable and distressed.

10 The applicant said he did not enjoy his overseas trip, as he was worried and concerned as to how he was to provide for his family. He believed that his job prospects were minimal and he was suffering emotionally and financially. However, the applicant acknowledged that he had part time work as a hospital cleaner while working for the College and that this work continued.

11 The applicant issued summons to give evidence directed to Mr Ron Gray (Maintenance Manager) and Mr John Lawrance Archer (Business Manager/Bursar).

12 Mr Gray's evidence was that he was aware in December 2001 of the applicant's intention of travelling overseas in December 2002. While the applicant had asked for a leave application, Mr Gray said it was his job only to advise the office of the dates the applicant would be away. Mr Gray believed the office would then be in touch with the applicant. Mr Gray conceded he had never told the applicant to put in a leave application.

13 Mr Gray said the applicant was informed on several occasions that contractors would be coming in. The College already employed cleaning contractors. However, Mr Gray believed that nothing would be done until February 2003 when the applicant had returned to work after his holidays. Mr Gray didn't know if anyone else had spoken to the applicant about the matter.

14 Mr Gray said he had no involvement in the decision concerning the applicant's job being made redundant as he didn't "hire and fire". He had no difficulties or concerns with the applicant taking annual leave and said there was no link between the applicant's leave and his redundancy.

15 In cross examination Mr Gray deposed that as a result of the restructure, his own job had changed significantly - it was no longer "hands on," but was more supervisory.

16 Mr Gray deposed that he didn't swear at the applicant, or call him names in Mr Archer's office. He stated that as there were six women working there, he would not have done so; although he agreed he spoke harshly at the time. He said he was "cross" because a job had to be completed in a short time frame (the pool cleaning) and it was the applicant's job to do so. Sometime later Ms Garvan called Mr Gray on his mobile and asked him to tell the applicant to come to her office. Mr Gray could not remember if Ms Garvan's phone call was on the same day.

17 Mr Gray said he did not go to Ms Garvan's office immediately after the incident in Mr Archer's office. Moreover, it would have been impossible for the applicant to have seen him do so because Ms Garvan's office was on a different floor to Mr Archer. He had never even mentioned the incident to Ms Garvan. As the Principal had already verbally approved the applicant's leave, Mr Gray believed the leave issue was not a problem.

18 Mr Gray said he never called the applicant "Bob". He had called him "Wal" or "Wally" and believed the applicant understood he was not making fun of him. Mr Gray deposed that he never bullied or abused the applicant. In fact they used to have lunch together and Mr Gray would allow him the use of his office facilities.

19 Mr Gray said that as the applicant was a groundsman/cleaner he never performed any trades work. A licensed plumber had been coming to the College for 27 years and the licensed electrician for 17 years. The applicant did however assist with minor repair work. Mr Gray emphasised that he had no problem at all with the way the applicant performed his duties.

20 Mr Archer deposed that about a week before 24 October 2002 the applicant had asked him about his annual leave. As Mr Archer was unaware of any application, he told him he would investigate the matter. The applicant went to Mr Archers' Office on 24 October and filled in the application form. Mr Gray had also arrived and was very angry. Four or five women were in the office and the door was open. To his recollection, Mr Archer said, Mr Gray did not swear and was not abusive. After Mr Gray left, the applicant and Mr Archer discussed the leave application further as to the times he would be departing and how best to utilise his accrued entitlements.

21 Mr Archer described his own role in the 2002 redevelopment of the College. The College had purchased Belmont Street from Sutherland Council. It was to become a staff car park, amphitheatre, passive recreation place for students with covered walkways, a formal entry and bus bay. The work was due for completion in August, but ended up being October. The College didn't take final possession until 11 November. The redevelopment increased the College site by a third. As the College couldn't afford additional hours or more labour, it was decided to restructure the work by offering the expanded maintenance and cleaning work to the existing internal cleaning contractor. This had the added flexibility of dovetailing the night cleaner with the day labour of the same contractor.

22 As the person directly involved in the restructuring decisions, Mr Archer said that the incident between the applicant and Mr Gray had nothing to do with the applicant's redundancy. Moreover, Mr Gray was not involved in the restructuring discussions or the decision. The final decision was made by Ms Garvan.

23 Ms Anne Garvan is the Principal of St Patrick's College. Her evidence was that when the College acquired ownership of an adjacent school (Belmont Street), the College grounds were increased by about one third. The site required significant redevelopment and repair to the Belmont Street school. She said it wasn't clear as to the extent of the scope of works until the fourth term in 2002 when the College's Finance Committee and Executive investigated options for the maintenance and up keep of the College grounds. The investigation concluded as follows: i) That the Maintenance Supervisor, Mr Ron Gray, was to take on additional duties coordinating the maintenance of Belmont Street and as a consequence would be unable to assist grounds maintenance staff with the full day to day maintenance of the total school grounds as was once the case. ii) That the total grounds keeping operation of the school could not continue with only one person undertaking cleaning duties. iii) That there were efficiencies that could be achieved through contracting out this service to an organisation specialising in this type of work. The additional benefit arising out of this was better compliance with the safety requirements of maintaining a suburban street. iv) The only other alternative would have been to hire an additional maintenance and groundskeeper full time which was beyond our allocated budget for maintenance of the two schools.

24 Ms Garvan said that as the College already employed contract cleaners, it was proposed that this contract be extended to maintenance and ground keeping at the beginning of 2003. This meant that internal and external cleaning would come under the same umbrella. In the proposal Mr Gray was to become supervisor of maintenance and be responsible for all the security of the College. In oral evidence, Ms Garvan said the new arrangements were working extremely well.

25 Ms Garvan said Mr Gray had alerted her informally some months prior to 23 October 2002, that the applicant was proposing to take annual leave. Ms Garvan deposed that she first became aware of the applicant's formal request for leave on 23 or 24 October 2002. She felt it prudent and fair to inform the applicant of the proposed changes in light of his travel overseas. She could not do so until there was a firm date for completion of the work. A definite decision was made just prior to 24 October. On that day, Ms Garvan phoned Mr Gray and informed him of the proposed changes and asked him to have the applicant come immediately to her office. Ms Garvan told the applicant of the new staffing arrangements for 2003 which included the abolition of two maintenance positions - the applicant's and Mr Craig Wilson's.

26 Ms Garvan emphasised that every effort was made to assure the applicant that his argument with Mr Gray about his leave application had nothing to do with the restructuring decision. She said that Mr Gray had no involvement in the applicant's redundancy. The applicant's leave was never an issue for the College. There was simply a misunderstanding of his intentions.

27 At a meeting involving herself and Mr Archer, the applicant was provided with a letter dated 31 October 2002, further explaining the reasons for his redundancy. The letter stated as follows: Subject: Restructure of Grounds Maintenance. As we have discussed on 24th October 2002, I am writing to advise you that St Patrick's College needs to review the workloads associated with the cleaning of the grounds and gardens which will increase significantly following the completion of the Belmont Street redevelopment. The College has decided to restructure the grounds maintenance and building maintenance functions so that this work can be completed adequately in the future. In this restructure, the College has decided to outsource the grounds maintenance and grounds cleaning functions and to concentrate on improving the effective supply of building maintenance (sic) and renewal. The College will look to have a contractor in pace to deliver this service from the beginning of the 2003 school year. It is with regret that I have to inform you that as a result of this restructure, your employment will be terminated as of the close of business on 7th January 2003, in accordance with the Maintenance and Outdoor Staff (Catholic Schools) (State) Award, where an employee is terminated and that employee is over 45 years of age, the College shall pay twelve and one half weeks (12.5 weeks) severance pay. If you wish to discuss this matter at any time please do not hesitate to see me. If you wish to discuss issues surrounding your Award entitlements please seek an appointment with the College Business Manager, Mr John Archer. At this meeting Ms Garvan said she informed the applicant of his rights to appeal the decision. A meeting was subsequently held at the applicant's home on 11 November 2002 with the Head of Employment Relations of the Catholic Education Office, Mr Peter Ford.

28 Ms Garvan said the applicant's notice of termination was a total of three months and he was paid his award entitlement to redundancy of 12.5 weeks with an additional three weeks (ex gratia). While Ms Garvan was concerned that the applicant was very upset, she genuinely believed he had been fairly treated.

29 Ms Mereau submitted that the applicant believed that he had been discriminated against, bullied and harassed and that if the incident with Mr Gray hadn't happened, he would still have his job.

30 Ms Mereau said that if the applicant had known what was going to lose his job he would never have booked an overseas trip. All he wanted was his job back or a job at another school. At 64 years of age, with limited understanding of English, it was very unlikely he would get another job. His redundancy had put him and his family under a lot of strain both financially and emotionally. He has a son still at school.

31 Mr McKay submitted that the applicant's termination of employment was a bona fide redundancy due to genuine operational changes at the College. There was no evidence to support the applicant's assertion that he was dismissed because of the incident with Mr Gray. Indeed, the evidence is to the contrary.

32 Mr McKay referred to the respondent's evidence that the applicant's leave was never an issue for the College. The respondent's evidence referred in detail to the restructuring of the school grounds, the process and the decisions taken. Mr Gray was not involved.

33 Mr McKay submitted that the Award in all respects had been complied with. The applicant received appropriate notice, appealed the decision and received more than the award entitlements to severance pay. He cited Electrical Trades Union of Australia, New South Wales Branch (on behalf of Filipe Rodrigues) and Star Electrical Co Pty Ltd [2002] NSWIRComm 297 and Shop, Distributive and Allied Employees' Association, New South Wales and W D & H O Wills Holdings Ltd [2000] NSWIRComm 98 and said that there was no evidence that the principles outlined in these decisions had not been complied with in this case. The applicant was fairly treated and the respondent, at all times, acted in good faith.

34 In reply, Ms Mereau made three points, firstly, that the respondent's evidence was unclear as to dates and times; secondly, Mr Gray had continually called the applicant "Bob", despite being asked not to do so and thirdly, the meeting with Mr Ford produced nothing with no support being offered to the applicant.

35 The question to be determined in this case is relatively straight forward - was the applicant's termination of employment based on reasons of genuine redundancy or as a result of the incident with his supervisor on 24 October 2002?

36 In reviewing the evidence surrounding this incident, I am disposed to accept that Mr Gray did not swear at, or abuse the applicant in Mr Archer's office on the day. It was conceded that Mr Gray was annoyed and his voice was raised because a pressing job (cleaning the pool) needed to be done. I note that in oral evidence, the applicant couldn't remember what Mr Gray said to him. Mr Archer however, who was an eyewitness to the incident, had no recollection of Mr Gray abusing or swearing at the applicant. I accept Mr Archer's evidence in this regard.

37 In the applicant's defence, I have little doubt that he felt genuinely aggrieved when told of the decision to make his job redundant. I also accept that he holds a genuine belief that his dismissal was related to the incident with Mr Gray. After all, it was agreed by both parties that the incidents occurred on the same day. Was it a pure coincidence? It seems to me that the evidence is overwhelmingly against the applicant's assertion that he was dismissed because of the incident with Mr Gray. This must be so for the following reasons.

38 The restructure of the College's maintenance and ground keeping functions was not a sham device or convenient means to remove the applicant from his employment. The redevelopment resulted from the acquisition of additional property and building improvements. The College site expanded by a third and the redevelopment had taken place over a long period. The College already engaged cleaning contractors and it was sensible to extend this contract to maintenance and ground keeping. The undisputed evidence was that the restructure resulted in Mr Gray's duties being changed significantly and another employee, Mr Wilson, was also made redundant. In other words, the applicant was hardly singled out unfairly.

39 Further, in my view, the facts and circumstances revealed in this case makes it abundantly clear that the applicant's assertion of being conveniently dismissed under the guise of redundancy, cannot be sustained.

40 The Commission accepts, without reservation, that the ultimate decision maker - the College Principal - Ms Garvan, had no knowledge of the incident between Mr Gray and the applicant. It was not, and could not possibly have been a consideration in the decision. I also accept Mr Gray's evidence (corroborated by Mr Archer and Ms Garvan) that he had no involvement in the decision making process and had not even told Ms Garvan of the incident.

41 As I said earlier, the applicant believed it was no coincidence that he was told of his redundancy on the same day as the incident with Mr Gray. However, there is a perfectly reasonable and rational explanation for this coincidence. The applicant had formally applied for leave on that day. Ms Garvan considered it would be fair and appropriate to bring forward notification to him in light of his application. I would agree. In any event, the applicant had at least two months notice before his leave was to commence and received pay in lieu of notice beyond his leave entitlements until 28 January 2003.

42 Moreover, I find it difficult to accept that the applicant was not aware something might be on foot after the completion of the redevelopment of the College. Mr Gray's evidence was that it had been discussed well prior to 24 October 2002. It is hard to imagine that questions would not have been raised during the redevelopment phase and in light of the College's existing use of cleaning contractors.

43 On the other hand, I have some sympathy and understand the applicant's argument that he would not have taken an overseas trip if he knew his job was to be made redundant. A few observations need to be made about this submission.

44 Firstly, the applicant's evidence was that he had planned (and presumably booked) his trip 12 months beforehand. It is not clear whether he had paid for the trip in full or by deposit at this time. However, it can hardly be the employer's responsibility that he chose to make these arrangements a full twelve months in advance.

45 Secondly, at the time he booked his trip, (December 2001) the respondent was many months away from making a final decision (if at all) about outsourcing the maintenance and groundwork. Indeed, at that time, it was unlikely to have been a consideration as to what was to happen with the maintenance work.

46 Thirdly, an employer cannot reasonably be held accountable for the personal financial decisions taken by an employee. It is a fact of everyday industrial life that most employees who are made redundant will find the financial consequences difficult, if not overwhelming. After all this is why, inter alia, redundancy benefits are paid.

47 Fourthly, the applicant has and continues to hold a second job at a hospital. I hasten to add that he should not, in any way, be criticised for doing so. In my view, the applicant is a proud, hardworking and conscientious employee very much concerned about providing for his family. He wants to work - he doesn't want charity. This view was demonstrated by his desire in this case to be reemployed at another school.

48 In summary then, the Commission finds that the applicant's termination of employment was for reasons of genuine redundancy arising from the restructure of the College's maintenance and ground keeping functions.

49 At this juncture I would observe that, in my experience, most dismissed employees believe they have been unfairly dismissed. This belief is obviously more keenly felt when the reason for dismissal has nothing to do with the employee's conduct or performance, such as here where the applicant was made redundant and there was no criticism of his work performance.

50 Notwithstanding a finding of genuine redundancy, it may still be open for the Commission to conclude that the decision made by the employer was unfair. This principle is encompassed in the following passage from Outboard World v Muir (1993) 51 IR 167, where the Full Bench said: 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.

51 Mr McKay reminded the Commission of the principles to be applied when considering whether a redundant employee has been fairly treated. These principles have been developed from a long line of authorities of this Commission and other industrial tribunals.

52 In Shop, Distributive and Allied Employees' Association, New South Wales and W D & H O Wills Holdings Ltd [2000] NSWIRComm 98, I reviewed the various authorities and distilled seven obligations on the employer in redundancy situations. They were that the employer should: 1. give reasonable notice to employees and/or their Unions 2. adequately consult with employees and/or their Unions on the impact of the proposed changes. 3. 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.

53 I reaffirmed these obligations in Huseyin Arslan and others and Berkeley Challenge (Commercial) Pty Limited and Others [2001] NSWIRComm 45 and added at Para 24 of that decision: Of course, a failure to properly, or exhaustively comply with each, and every one, of these obligations might not necessarily warrant an adverse finding against an employer. Each case will be determined on its own particular set of facts and circumstances.

54 All awards of this Commission are required by s19 of the Act to include minimum redundancy/retrenchment standards arising from test cases before Full Benches of this Commission. See Re Application for Redundancy Awards (1994) 53 IR 419. Some awards will have redundancy benefits in excess of the minimum standards and some employers, whether by agreement or some other arrangement, such as company policy, will pay more generous benefits.

55 In my judgement the requirement pursuant to s10 of the Act, for an award of this Commission to set "fair and reasonable conditions of employment for employees," means that, prima facie the redundancy benefits under an award will be found to be "fair and reasonable." However, in a particular case, the Commission might conclude that the redundancy of an employee and/or the process leading up to it, was unfair. As I said in Arslan each case will turn on its own particular facts and circumstances.

56 The redundancy provisions under the applicant's Award are expressed in Part C which is annexed in full to this decision. These provisions are reflective of the minimum standards for redundancy established by this Commission.

57 It is necessary, I think, to have regard to the provisions of the Award, covering a dismissed employee, when determining whether such a dismissal was 'harsh, unreasonable or unjust' within the meaning of Pt 6 ch 2 of the Act.

58 A recent decision of the Full Bench of the Commission reaffirmed the importance of applying the procedures contained in an industrial instrument to the dismissal of an employee. In Humphries v Cootamundra Ex-Services and Citizens Memorial Club Limited [2003] NSWIRComm 211, the Full Bench said at para 119 to 121: As was stated in Gow v Cronulla Sutherland Leagues Club Ltd (2002) 119 IR 122 (at [319]), however, procedural defects will generally be more serious in circumstances in which the unfairness derives also from a breach of a legal obligation. In Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385, (at 4, 5 and 8) the Full Bench of the Commission stated that: [W]here procedures are specified in an industrial instrument or by administrative action, a failure by an employer to apply, or to properly apply, those procedures may in appropriate cases, of itself, support a finding that the dismissal was harsh, unreasonable or unjust. We are also mindful of the comments of a Full Bench of this Commission in Rich River Golf Club Ltd v Power [1995] NSWIRComm 75 that: This denial of procedural fairness may not have been sufficient for us to support the finding by the Commissioner that Ms Power should be re-instated except that the provision was an actual award provision binding the parties in its terms. In upholding the first instance decision in that case (requiring strict adherence to the relevant provisions), the Full Bench gave an indication of the significance that must attach to the terms of an instrument such as an award.

59 Having regard for Pt C of the Award, and in reviewing the evidence in this case, I make the following findings: i) the respondent informed the applicant of his redundancy as soon as a firm decision had been made and discussed with him the circumstances and reasons for the decision. ii) the applicant was informed of his rights to appeal the decision and took up the offer to do so when he met with Mr Ford on 11 November 2002.

iii) the applicant's actual termination of employment was not effected for three months - significantly in excess of the four weeks notice provided for in the Award, see cl 4.1 of Pt C. iv) the applicant received redundancy payments of 12.5 weeks and an additional three weeks. This was in excess of award entitlements - see cl 5 of Pt C.

v) the resultant effect of the proposed restructure made it impossible to offer the applicant alternative work at the College.

vi) the applicant was not treated unfairly in the selection process. All three maintenance employees were affected. Two lost their jobs and the other (Mr Gray), had his duties significantly altered.

60 In view of these findings, the Commission is satisfied that the applicant's termination of employment was for reasons of genuine redundancy and that the respondent has discharged its obligations to the applicant in these circumstances.

61 It follows that the redundancy of the applicant does not attract a conclusion of being harsh, unreasonable or unjust within the meaning of Pt 6 ch 2 of the Act. I find accordingly.

Annexure A Maintenance and Outdoor Staff (Catholic Schools) State Award - Part C

Redundancy 1.1 This Part shall apply in respect of full-time and part-time persons employed in the classifications specified by this Award. 1.2 This Part shall only apply to employers who employ 15 or more employees immediately prior to the termination of employment of employees. 1.3 Notwithstanding anything contained elsewhere in this award, the provisions of this part shall not apply to employees with less than one year's continuous service and the general obligation on employers shall be no more than to give such employees an indication of the impending redundancy at the first reasonable opportunity, and to take such steps as may be reasonable to facilitate the obtaining by the employees of suitable alternative employment. 1.4 This Part shall not apply where employment is terminated as a consequence of conduct that justifies instant dismissal, including malingering, inefficiency or neglect of duty, or in the case of casual employees, apprentices or employees engaged for a specific period of time or for a specified task or tasks or where employment is terminated due to the ordinary and customary turnover of labour.

2.1 Where an employer has made a definite decision to introduce major 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 they belong. 2.2 The employer shall discuss with the employees affected and the union to which they belong the introduction of such changes and the likely effect on the employees and the measures taken to avert or mitigate the adverse effects of such changes. 2.3 'Significant effects' include termination of employment, major changes in the composition, operation or size of the employer's 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.

Discussions before terminations 3.1 Where an employer has made a definite decision that the employer no longer wishes the job the employee has been doing done by anyone 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. 3.2 The discussions shall take place as soon as is practicable after the employer has made a definite decision which will invoke the provision of subclause 3.1 of this clause 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 of the employees concerned. 3.3 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 employees 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.

Notice for Changes in Production, Program, Organisation or Structure 4.1 This subclause sets out the notice provisions to be applied to terminations by the employer for reasons arising from 'production', 'program', 'organisation' or 'structure' in accordance with clause 2 of this Part. 4.1.1 In order to terminate the employment of an employee the employer shall give to the employee the following notice: Period of continuous service Period of Notice Less than 1 year 1 week 1 year and less than 3 years 2 weeks 3 years and less than 5 years 3 weeks 5 years and over 4 weeks

4.1.2 In addition to the notice above, employees over 45 years of age at the time of the giving of the notice with not less than two years continuous service, shall be entitled to an additional week's notice. 4.1.3 Payment in lieu of the notice above shall be made if the appropriate notice period is not given. Provided that employment may be terminated by part of the period of notice specified and part payment in lieu thereof. 4.2 Notice for Technological Change This paragraph sets out the notice provisions to be applied to terminations by the employer for reasons arising from 'technology' in accordance with clause 2 of this part. 4.2.1 In order to terminate the employment of an employee the employer shall give to the employee three months notice of termination. 4.2.2 Payment in lieu of the notice above shall be made if the appropriate notice period is not given. Provided that employment may be terminated by part of the period of notice specified and part payment in lieu thereof. 4.2.3 The period of notice required by this subclause to be given shall be deemed to be service with the employer for the purposes of the Long Service Leave Act 1955, the Annual Holidays Act 1944, or any Act amending or replacing either of these Acts. 4.3 Time off during the notice period 4.3.1 During the period of notice of termination given by the employer an employee shall be allowed up to one day's time off without loss of pay during each week of notice, to a maximum of five weeks, for the purposes of seeking other employment. 4.3.2 If the employee has been allowed paid leave for more than one day during the notice period for the purpose of seeking other employment, the employee shall, at the request of the employer, be required to produce proof of attendance at an interview or the employee shall not receive payment for the time absent. 4.4 Employee leaving during the notice period If the employment of an employee is terminated (other than for misconduct) before the notice period expires, the employee shall be entitled to the same benefits and payments under this clause had the employee remained with the employer until the expiry of such notice. Provided that in such circumstances the employee shall not be entitled to payment in lieu of notice. 4.5 Statement of employment The employer shall, upon receipt of a request from an employee whose employment has been terminated, provide to the employee a written statement specifying the period of the employee's employment and the classification of or the type of work performed by the employee. 4.6 Notice to Centrelink Where a decision has been made to terminate employees, the employer shall notify Centrelink thereof as soon as possible giving relevant information including the number and categories of the employees likely to be affected and the period over which the terminations are intended to be carried out. 4.7 Centrelink Employment Separation Certificate The employer shall, upon receipt of a request from an employee whose employment has been terminated, provide to the employee an 'Employment Separation Certificate' in the form required by the Department of Social Security. 4.8 Transfer to lower paid duties Where an employee is transferred to lower paid duties for reasons set out in clause 2 of this part, the employee shall be entitled to the same period of notice of transfer as the employee would have been entitled to if the employee's employment had been terminated, and the employer may at the employer's option make payment in lieu thereof of an amount equal to the difference between the former ordinary time rate of pay and the new ordinary time rate for the number of weeks of notice still owing.

5.1 Where an employee is to be terminated pursuant to clause 4 of this part, subject to further order of the Industrial Relations Commission of New South Wales, the employer shall pay the following severance pay in respect of a continuous period of service: 5.1.1 If an employee is under 45 years of age, the employer shall pay in accordance with the following scale: Years of Service Under 45 Years of Age Entitlement Less than 1 year Nil 1 year and less than 2 years 4 weeks 2 years and less than 3 years 7 weeks

3 years and less than 4 years 10 weeks 4 years and less than 5 years 12 weeks 5 years and less than 6 years 14 weeks 6 years and over 16 weeks

5.1.2 Where an employee is 45 years old or over, the entitlement shall be in accordance with the following scale: Years of Service 45 Years of Age and Over Entitlement Less than 1 year Nil 1 year and less than 2 years 5 weeks 2 years and less than 3 years 8.75 weeks 3 years and less than 4 years 12.5 weeks 4 years and less than 5 years 15 weeks 5 years and less than 6 years 17.5 weeks 6 years and over 20 weeks

5.1.3 'Weeks Pay' means the all purpose rate of pay for the employee concerned at the date of termination, and shall include, in addition to the ordinary rate of pay, over award payments, shift penalties and allowances provided for in the relevant award. 5.1.4 Where an employee is subject to a reduction of working hours of 6 or more hours per fortnight, the reduction will be treated as a partial redundancy. A pro rata payment will be made in accordance with the severance payments set out in paragraphs 5.1.1 and 5.1.2 above. 5.2 Incapacity to Pay Subject to an application by the employer and further order of the Industrial Relations Commission of New South Wales, an employer may pay a lesser amount (or no amount) of severance pay than that contained in subclause 5.1. The Industrial Relations Commission of New South Wales shall have regard to such financial and other resources of the employer concerned as the Commission thinks relevant, and the probable effect paying the amount of severance pay in subclause 5.1 above will have on the employer. 5.3 Alternative Employment Subject to an application by the employer and further order of the Industrial Relations Commission of New South Wales, an employer may pay a lesser amount (or no amount) of severance pay than that contained in subclause 5.1 if the employer obtains acceptable alternative employment for an employee.

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Judgment (83 paragraphs)

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Cases Cited (9)