Jozef Banas v State of New South Wales

APPLICANT: Dr J Berwick of counsel SOLICITOR: Mr K Gourlie Craddock Murray & Neumann LEGAL REPRESENTATIVES: RESPONDENT: Mr D J Dickinson of counsel SOLICITOR: Mr R Salpeter Crown Solicitor's Office

JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

3 October 2003 Matter No. IRC 4628 of 2000 JOZEF BANAS v STATE OF NEW SOUTH WALES APPLICATION UNDER s 106 OF THE INDUSTRIAL RELATIONS ACT 1996 JUDGMENT [2003] NSWIRComm 317 INTRODUCTION 1 The applicant Mr Josef Banas moved to the Central Region of the Department of Corrective Services in 1992, having been appointed to the position of Regional Finance and Administration Manager Grade 9/10. This was a senior position in the administrative and clerical gradings within the public service and represented a considerable personal achievement for a person who had arrived in Australia as a non-English speaking Polish migrant. Mr Banas was considered to be a valuable employee and performed well in this senior role. However, in 1996, the Central Region was disbanded and his position, along with 15 to 20 other administrative and clerical positions, was abolished. Mr Banas became, in the language of the public service, a "displaced person" - a notion he had some familiarity with in deciding to leave his homeland just two months before martial law was declared. This case, brought under s 106 of the Industrial Relations Act, examines his treatment as a displaced person, the alleged unfairness of the Department in handling his redeployment and the psychological disorder said to result from the mishandling of his situation which occurred during the three years before his "voluntary redundancy" in December 1999. THE APPLICANT'S CASE OPENED 2 In opening his case, it was submitted that Mr Banas was a capable and dedicated officer while carrying out his duties. In 1992, he moved on transfer to Blacktown to take up his position which was a senior accountancy position Grade 9/10 on the clerical scale. In December 1996, the Centre in which he worked was closed resulting in a number of positions being made redundant, including that of Mr Banas. Thereafter, Mr Banas experienced severe difficulty in finding suitable positions. While Mr Banas sought positions in other departments without success, the Department of Corrective Services offered only unsuitable positions. The issue of the reasonableness of the Department's treatment of him while investigating re-deployment and/or considering voluntary redundancy was said to be at the heart of the case.

3 An issue which loomed as significant was a period of time, approximately of one year's duration, during which Mr Banas was not paid by the Department, but was apparently considered to be on leave without pay. This situation arose as a result of a series of discussions after which a voluntary redundancy package had been agreed with Mr Banas, but when he had also pursued a separate payment as compensation for the effect on his career of being so long out of a senior accounting position. It was ultimately agreed between Mr Banas, his solicitors and the Department that the matter of compensation would be considered separately from the issue of voluntary redundancy, but Mr Banas had formed an expectation that a decision on his compensation, would be dealt with in a contemporaneous time frame so that all issues, that is, voluntary redundancy and separate compensation would be finalised at about the same time. He apparently gave instructions to his solicitors to write to the Department setting a period of some 14 days in which to make a suitable offer in relation to compensation. When this did not eventuate, Mr Banas regarded himself as having been misled and thereupon declined to leave his normal duties, such as they were, and proceed to "job search leave". His refusal to go on job search leave was taken by the Department as a refusal of the offer of voluntary redundancy and he was directed to be re-deployed in a position which he did not accept was comparable and which he had previously rejected as unsuitable. He thereupon took sick leave because of stress and exhausted his sick leave. The Department, apparently unilaterally, then exhausted his annual leave and thereafter did not pay him until his services were terminated, when agreement was finally reached about the payment of a voluntary redundancy package.

4 In September 1998 when the Department withdrew the offer of voluntary redundancy as referred to above, Mr Banas was also appointed to the position of Business manager at the Academy, a position he had rejected in February 1997. A question was said to arise whether the policy on displaced persons allowed this direction to be made, especially in circumstances where Mr Banas had been accepted for voluntary redundancy as an excess employee.

5 A great deal was said to hinge upon the re-deployment policy operating in the public service. The policy contemplated that, firstly, suitable positions would be looked for within the same Department within a reasonable time frame and, if none were found, then the employee would be referred to a central agency (the Workforce Management Centre "WMC") where efforts would be made to place the person in employment in any suitable position in the public sector. The policy also contemplated that, during this process, a person had to demonstrate essential qualifications and suitability for the job but did not have to be the best applicant for a vacancy nor enter into competitive consideration for appointment. Nevertheless, Mr Banas was not placed in at at least one position because of a consideration of relative merit.

6 A further issue was said to arise in relation to the sick leave taken by Mr Banas on account of stress. In relation to this period, Mr Banas filed a claim for workers compensation which was denied by the employer because it was considered that there was not a relationship or sufficient relationship between the illness and his employment. While Mr Banas contested the rejection of his claim for workers compensation, he did not proceed to file a claim in the Compensation Court. This situation led the respondent to submit that the s 106 claim, or at least part of the relief sought by the applicant, was nothing more than a claim for workers' compensation which was not pursued in the Compensation Court. So categorised, the Compensation Court exercised exclusive jurisdiction over that subject matter and there was no power in the Commission in Court Session to make what was, in effect, an order for compensation that could only be made by the Compensation Court.

7 The respondent also raised other jurisdictional and discretionary issues. The claim, insofar as the applicant sought general damages by way of relief in this Court, sought a greater amount of money than a worker at common law could achieve and that consideration effectively removed that part of the relief claimed from the jurisdiction of the Commission. Further, it was submitted that the Public Sector Management Act, in ss 50, 51, 52, 53 and 54 dealing with excess staff, excessive salary and dispensing with employment, dealt with all the issues and provided the respondent with power to take the steps it did and there was no jurisdiction in the Commission under s 106 to make any orders effectively in conflict with steps taken pursuant to the statutory scheme set out in the Public Sector Management Act (PSM Act).

THE EVIDENCE 8 The applicant said that he first approached the Department about redundancy in December 1996 when he wrote to Mr Woodham (Assistant Commissioner) about it. While waiting for a reply, he heard rumours from other employees who had also been displaced because of the closure of the regional Centre, that his application had been refused and that the Department would not be offering voluntary redundancy to him. The applicant then met Mr Woodham and Mr Batty (Acting Director, Personnel Services in the Department). Mr Batty confirmed that voluntary redundancy had been refused although Mr Banas could not recall the precise words that were said to him. The applicant said that he remembered the conversation because it was very important to him and that is why he remembered that he had been told by Mr Batty that his application for voluntary redundancy had been refused. It was possible that, during this conversation, Mr Batty said that he was a valuable employee and that the Department would find him a position but the Department was not giving voluntary redundancy at that time.

9 During the meeting with Mr Woodham and Mr Batty on 17 February 1997, the applicant accepted that he was told by Mr Woodham that redeployment was the first priority under the Displaced Persons Policy. He was probably also told that he had not then met the requirements of voluntary redundancy.

10 The applicant also recalled a meeting in December 1996 with representatives of the Personnel Department and Human Resources Department and a number of a people who were potentially redundant because of the closure of the Regional Centre where he was working. At that meeting it was explained that the Department was looking at redeployment and accommodating displaced persons: they were all to be given jobs.

11 The applicant said that he was concerned about his future because he was approaching 50 years of age and had a senior accounting position. In his meeting with Mr Woodham and Mr Batty, he thought he had been told how he would be accommodated because they seemed to understand that he would not be able to obtain a suitable position. Representations would then be made to the Commissioner for Corrective Services for him to be considered for voluntary redundancy.

12 During the meeting, there was discussion concerning a job at the Corrective Services Academy, Eastwood. The applicant said he had a fair idea of what was entailed in that job because of his work in the Department over the years. He said there was no detailed discussion of the duties but he explained that he did not want the job, not because he could not do it but because it was not the type of job he wanted. The job involved running a business as such, including the administration involved in that task and required better English than he possessed. He also had the view that his position and its role was that of an accountant using his professional qualifications where he performed analysis and advised executives how to run a facility efficiently. Further, he had financial responsibility for a budget of $50m, whereas the budget at the Academy was $5m. He denied that this was an issue of "status", it was just that the Academy was a differently focused job and one that he did not think was appropriate or equivalent to the type of duties he had performed. He had no complaint about the grading of that job at Grade 9/10 and the process by which it was graded. His complaint was about the content of the duties and how it was different from his career path. A job at Windsor as Finance and Administration Manager was also discussed at this meeting.

13 The applicant understood that it had been agreed by Mr Woodham and Mr Batty that satisfactory redeployment was not viable. That was his understanding of what they said or the effect of what they said, although he could not remember their precise words. They were considering placements in a period of 6 months but they could not tell him what jobs would be available in that period. At the end of that discussion, there were no suitable positions identified which were available within the next 6 months. Mr Woodham said he would talk to the Commissioner about the position, and the impression the applicant gained was that Mr Woodham and Mr Batty would support his application for voluntary redundancy.

14 The applicant thereafter wrote a series of letters in quite strong language expressing his disappointment that he had been neither placed in an appropriate position nor given voluntary redundancy He denied that he had refused to entertain two positions which were suitable: rather, he had challenged their suitability and comparability with his previous position. He expressed the view that people were trying to harm him and hurt his career. The applicant accepted that he was emotional when he wrote these letters and expressed himself in that way.

15 The applicant said that when the region was restructured, he started to investigate jobs outside the public service including work in his native Poland. He did this because there were no jobs for him and he was afraid that none would be found. In January1997, he sent his resume to various leading accountancy firms in Poland and, while on leave in March/April 1997, he visited his family in Poland and undertook a number of interviews in Warsaw. He stated that some were interested and he was offered a job but no offer was taken up. Before he went on leave, Mr Banas discussed the Academy position with Mr Rave on 4 March 1997.

16 When he returned from leave in April 1997, he was allocated to the Norma Parker Correction Centre. He had been working there before going on leave doing project work regarding branch costing and that work was carried out between January - March 1997. That project work had been completed before he went on leave.

17 When he returned from leave there was no further project work available. He was placed at the Norma Parker Correction Centre but was attached to the Operations Branch at the Head Office of the Department with no one supervising him: no project work was provided to him.

18 Mr Peter Peters replaced Mr Batty as Acting Director of Personnel of the Department and, on 17 July 1997, the applicant met with Mr Peters at the Norma Parker Centre. This meeting arose after he returned from Poland and no duties had been allocated to him. He had written to Mr Batty and was informed that he would be placed at the Metropolitan Remand and Reception Centre (MRRC) in May. Nothing had occurred in relation to that position and there were no answers to his various enquiries so he applied for a number of jobs outside of the Corrective Services Department and contacted Mr Peters. It was in those circumstances that a meeting with Mr Peters was organised.

19 In the meeting with Mr Peters, there were two positions raised for his consideration which were the Academy position and a position of Finance Administration Manager at Windsor. These were the positions which had been discussed with Mr Woodham four months earlier. The position at Windsor had not yet been established. The applicant considered the Windsor position unsuitable because it was essentially based upon a Grade 5/6 position that had previously operated in the Branch. The position was outside the metropolitan region and some 40kms from his home. There was no position description available. In addition, at this time, he was pursuing jobs elsewhere in the Service, including at the Opera House, the Treasury, the Long Service Leave Corporation, the SRA and other places but had not yet been advised whether or not he had been successful. A number of these applications had been made since May or June. He believed as a displaced person he had a priority before other applicants for being considered. He believed that so long as he demonstrated his capacity for the duties his status as a displaced person meant, under the displaced persons policy that he would be appointed to such a vacant position. The applicant agreed, that although he was a displaced person at this point, he had not yet been declared excess in accordance with the provisions of the Public Sector Management Act. The applicant believed that he had been encouraged to apply for jobs outside the Department and he had done so.

20 Mr Banas estimated that the distance from his home to the Windsor position was 33 to 40 kilometres and that was an additional reason why the position was unsuitable. In June or July 1998, Mr Banas had consulted a firm of solicitors but did not know there was an offer of voluntary redundancy, but when he was aware of it he returned to his solicitors in the beginning of July. He agreed that at this time he had not put the terms of his proposal for fair compensation but wished to discuss it with the Department. It was not discussed with the Department although it was mentioned to Mr Schipp (Executive Director, Finance, Department of Corrective Services) but there was no response to this claim for compensation. He then had in mind that if there was no fair outcome he had the facility of s 106 of the Act available to him. Before he had seen his solicitors he did not propose any action under s 106 but only sought a fair outcome to recognise his situation after 2 years. It was his legal advisers who raised s 106, in fact, initially the Legal Aid Commission. He had complained to the DPP about his solicitors in November 1998 and also had complained about the Legal Services Commission.

21 Mr Banas said he had accepted the redundancy package on the condition it dealt with his compensation claim; he understood that there would be compensation. He said the Department was trying to get rid of him and would not pay compensation if he first took the voluntary redundancy. After two years, he wanted his compensation or to get another job.

22 He had received an offer of voluntary redundancy and he was to proceed on job search leave on 31 August 1998 for 12 weeks, after which his employment would cease. His last day of official duty would be 28 August 1998. There was nothing in the correspondence which said that he required his compensation to be resolved before his last day of work on 28 August. His solicitors had sent a letter to the Department on 3 July accepting that the issue of compensation would be dealt with separately to the issue of voluntary redundancy. His solicitor's letter also sought an offer of compensation within 14 days or threatened action under s 106 of the Act.

23 After receiving a letter from Mr Schipp dated 19 August 1998, Mr Banas told Mr Schipp that he would attend work on 31 August in the absence of advice about resolving the situation regarding compensation. He understood that the Department regarded this as a breach of its offer and his acceptance of redundancy. While he had agreed to take the Job Search Leave he did not sign the necessary documents accepting the conditions relating to that leave.

24 On 17 September 1998, Ms Lord (Executive Director, Human Resources in the Department) had written saying that no response had been received in relation to the two jobs which had been identified for him. The offer of voluntary redundancy had been withdrawn and he was appointed to the position at the Academy. At this time, Mr Banas consulted medical advisers, proceeded on stress leave and consulted his solicitors. There were some discussions and the offer of voluntary redundancy was reinstated but he had to go on job search leave and there was no discussion as to when the issue of compensation would be dealt with. Mr Banas said that at this stage he was sick and was just trying to get out of the situation and recover. He was willing to leave the Department. At this point, he did not consider the issue of workers compensation because he was sick and was not considering anything in November 1998. On 11 November 1998, he had received a letter from his solicitors advising him on his workers compensation claim and its effect on voluntary redundancy. He was advised that it was essential to resolve the issue of voluntary redundancy before considering a claim under s 106 of the Act.

25 He had never intended at this time to lodge a workers compensation claim. He had been told that, if he proceeded on leave using a medical certificate, to do so on workers compensation. He had lodged his workers compensation medical certificate but understood this to be different to lodging a workers compensation claim. Worker's compensation claims were on a special form and that had not been lodged. By 20 January 1999, the claim had been rejected by the Department. Mr Banas understood that at this point if he wanted to litigate the claim he needed to request conciliation because the insurer had rejected his claim. That step was not taken. He did not go to the Compensation Court because he was concerned about his health and he had a voluntary redundancy agreement which had not been fulfilled by the Department. It was about this time that he was told by his solicitors that they were not acting for him any more. He complained that his case had been mismanaged by his solicitors and the delay had disadvantaged him financially. At this time, he said he was in an emotional state and could not explain why things happened: he had been sent to a psychologist and was in tears. He was frustrated and sick and wanted to get out of the Department and start working. He had got to the position where he wanted the voluntary redundancy and if it was not granted he would push on with his worker's compensation claim.

26 The deadline for an appeal against the decision of the medical panel had been extended at his request. He had wanted to keep his options open and that is why he asked for the extension. He had two matters referred to ICAC concerning his treatment and his failed efforts to obtain other employment in the public service. When he had been sent to work at head office in the Finance and Asset Branch he came under the ultimate control of Mr Schipp. Originally, he was under the control of Mr Bedding and later was under Mr Schipp. On arrival Mr Bedding was unable to give him duties or responsibilities: Mr Bedding (Acting Director, Finance Services) had told him that all vacancies had been filled so people could get experience in those positions and there was no project work. Mr Banas said he did odd jobs in various matters including reconciliation of the Department's fixed assets. In this position he did filing and copying work. While others at his level did not do copying that was his task - he went to the compactus, he sorted out the documents and copied them. This was not at his standard of work, he wanted project work and to have imput. He had approached Mr Schipp and said he would not do odd jobs and asked for project work. He was then given project work and worked on this for one and a half months.

27 In relation to the meeting with Mr Peters on 17 July 1997, the position at Silverwater was discussed: Mr Peters said that another officer was being considered for the position. Mr Banas did not recall exactly what was said but believed that he was told that he possibly could be placed in the position but he was not informed about it before someone else was in fact placed in that position. Mr Banas contacted the manager of the Centre who told him that even if someone else was in the job he could be placed in it. The other officer was not a displaced person. A Mr Cruickshank was transferred into the position and was appointed to it: he was found more suitable. In relation to the Remand Centre position, Mr Banas' point was that Mr Cruickshank had not been displaced when he was transferred into this position.

28 When Mr Banas returned to Australia from Poland he thought there was a strong possibility that he would be placed at the Remand Centre but nothing came of it. On his return in May, there was no movement on outside positions as he had no recognised priority: he asked what was happening to his position and a meeting was arranged with Mr Peters. He regarded the Remand Centre position as the most suitable position for him: one reason was that it was close to his home. 29 On or about 30 July 1997, Mr Banas had a meeting with Mr Donohue (Senior Industrial Officer, Workforce Management Centre) and Mr Peters. He had sent his applications for outside positions to Mr Batty including a position at the Opera House and had contacted the WMC about it. Mr Batty had told him he had to be registered with the WMC in order to be considered for these positions. The meeting with Mr Donohue had taken place in May 1997 and, although Mr Banas could not recall all that was said to him in the brief meeting, he was told that there was no record of him being registered - he was to contact his own Department about being registered. In response to a suggestion put to him in cross-examination that he knew since May 1997 that he had to be registered with the WMC, Mr Banas said he did not know that and he had asked Mr Donohue where this requirement for registration was and had received no reply. He had been told by Mr Cowell (Manager, Industrial Relations Services, Premier's Department) after complaining about the lack of assistance he was receiving getting jobs, that he was not strictly eligible for WMC assistance - the Department looked for placements first and during this period he was not able to seek placements elsewhere.

30 Mr Banas rejected the proposition that he was not eligible for the Sydney Opera House job because it meant a promotion. The placement policy allowed up to 5 per cent or a one grade difference in placement and during the time he had applied there had been an increase in salary. He was eligible for this position but had been excluded on artificial grounds and considerations.

31 He applied for a Treasury position in the city and had been offered a three month trial under conditions, namelyn that he improve his English skills by course work and that there would be an assessment of him in three month's time. Mr Banas said that Mr Peters was involved in this matter and that he had been offered a course to overcome his stutter which was a problem Mr Peters had identified. Mr Banas was worried about satisfying conditions for the Treasury job. He regarded it as the best job that he could get. At the time that he refused the trial period in the job, he was working in Campbell Street and travelling two and a half hours a day on the bus. He was frustrated at the time, with little to do and travelling a lot to and from work. He did not regard the work at Campbell Street as a real job. He thought the trial period and the English course conditions for the Treasury job were unreasonable when he had priority of placement under the policy. At this time, although he was complaining about travel, he was able to travel from Baulkham Hills to the CBD and that was not unreasonable, but he had lost his self esteem and thought that he could lose out overall if he was not given the Treasury job after three months. 32 It was put to Mr Banas that, in relation to a number of the outside positions for which he had applied, for whatever reason, ultimately he had declined to attend interviews in relation to those positions. Mr Banas said that in relation to the Long Service Payments Corporation he had declined to attend a second interview because a question arose as to whether he had priority for the position. In relation to the Fair Trading Department position, he was told that it was a promotion that he thought had fitted the flexibility of the guidelines but, ultimately, he did not know if he was eligible for priority or not. In relation to the position at the RTA he had discussed it and tried to find out about the position but was given no information. He could not recall what had happened but he had not attended for the interviews. When he was told that he did not have basic accounting skills during the course of looking for new positions, he became dejected and angry and declined to attend further interviews. He had taken this approach because, without priority, he thought attending the interviews was pointless and he had lost faith in the system.

33 Dr Napper was a psychologist who had treated Mr Banas. He had in the order of 20 sessions with Mr Banas which he accepted was a high number of consultations but they were necessary because Mr Banas suffered from a particularly severe adjustment disorder which continued for over two years and was difficult to treat. There was only real improvement in his condition when he started a new job in approximately February 2000. He did not think that Mr Banas was excessively obsessional. Dr Napper noted that obsessional traits often appeared in professional people who were meticulous in relation to deadlines and performance and always have these matters to the forefront of their minds. These matters become a medical problem when people cannot switch off. On examination in 2001, Mr Banas had been in a new job for 18 months and, in his view, Mr Banas' mental health had basically recovered. He had a normal mood now which was the direct opposite from what he had seen in October 1998. 34 In December 1998, Dr Napper had provided a brief report for Mr Banas' employer. He had considered Mr Banas to be medically unfit because of anxiety and adjustment disorder. In his view, Mr Banas was suffering from a physical injury which was entirely work related. There had been no prior psychological disorder for a number of years and all the disturbing events for the next few years were work related. He regarded Mr Banas as being obsessional within the normal range but he could be stressed if his usual job and position was removed from him. Mr Banas appeared to complain or had been affected by unexplained job changes, meaningless work and being isolated from normal work. In cross-examination Dr Napper said that for a diagnosis of adjustment disorder it was sufficient to be simply impaired as a result of stress.

35 Dr Napper was referred to previous reports prepared by Dr Canaris. Dr Canaris had said that Mr Banas' main problem was his intensely obsessive personality. Dr Napper disagreed and said that this personality trait was widespread and was not a psychiatric disorder. He would rate this 1-5 in a score out of 10. Mr Banas displayed no obsessional problems at home or in his personal life and the obsessional qualities he exhibited were in the acceptable range of personality traits. When asked whether job security was the underlying cause of Mr Banas' stress at work, Dr Napper said that, on the second occasion that Mr Banas suffered this degree of stress, the issue was not job security. It appeared to be the fact that responsibility had been taken away from him with a loss of meaningful work. That was embarrassing for Mr Banas and it was understandable that he became anxious and depressed about these matters. Mr Banas had not said to him that he was expecting a negative personal assessment or that he was going to lose his job. Although he had been first consulted by Mr Banas on 13 October 1998, he appeared to display symptoms of adjustment disorder some two years before, just as the Department closed his work centre and uncertainty arose about his job - he was then doing project work or work that was not really a part of an established position. Dr Napper thought that the first cause of stress was the lack of meaningful work rather than the difficulty with finding alternative work.

36 Dr Napper stated that there was no scientific evidence that one bout of adjustment disorder would lead to another bout. One had to examine the circumstances and there was no other adjustment disorder unless Mr Banas' work situation was unstable. Asked whether he was at risk with two episodes of adjustment disorder, Dr Napper said that his self esteem and self confidence had taken a battering and would not recover but it was not a psychological disorder.

37 Dr Napper had seen the report of Dr Lucire obtained by the respondent but he could see no support for the opinions expressed.

38 Ms Hunter was the Director of Workplace Relations for the Department of Corrective Services. On 2 December 1996, she was the Industrial Relations Manager for the Department, a Grade 11/12 position. She was present at a meeting of staff, comprising 20 or 30 persons mainly in the clerical field, who were called to discuss the closure of the Regional Centre. At this meeting she understood that Memorandum 96-5 was the policy on displaced persons and while she was familiar with it she was not aware of it in detail. Management of the policy fell to Mr Batty.

39 Ms Hunter was aware that voluntary redundancy offers had been made in the past. At the meeting, only one person had raised voluntary redundancy and she had informed that person that voluntary redundancy was not available unless special dispensation was given. She understood that voluntary redundancy was not being offered by the Department, an understanding she obtained from other meetings she had attended. Senior management were saying that no staff would lose their jobs and that all would be redeployed: that was said by Assistant Commissioner Woodham.

40 Mr Batty was present with Mr Banas in the meeting with Assistant Commissioner Woodham held on 7 February 1997. Mr Woodham chaired the meeting which was held at Mr Banas' request to consider voluntary redundancy. At the start of the meeting, Mr Woodham said that, with the closure of the regional office and the displacements, a number of steps had since been taken and he described them. He said that he would consider Mr Banas' request to see if anything had not been considered in his case. Mr Woodham had said that he was confident that the Department could place Mr Banas within the Department at his grade and skills.

41 Mr Banas had said that while some positions had been offered to him they failed to properly recognise his financial skills and status. Mr Banas said he was experienced in budgeting in the Central Region and the duties were of a higher order than at the Academy. He said that there was no place for him in the Department with his financial skills. Mr Woodham did not disagree that Mr Banas was a valuable employee. He said that he recognised Mr Banas had these skills and he was confident that he could place Mr Banas and not to his disadvantage. There would be no country re-location or transport dislocation - he could place Mr Banas with co-operation.

42 Mr Batty said that at the same meeting he supported the things Mr Woodham had to say, telling Mr Banas that he was confident of placing him in a position which would use his skills, although it may not be a fully finance position. There were other areas opening such as the MRRC etc. Mr Batty said he asked Mr Banas to reconsider the position at the Academy. Mr Woodham and Mr Batty undertook to speak with the Commissioner about the matters raised by Mr Banas and they did so late on that same day.

43 Mr Batty was aware that Mr Farrell (the former Central Region Commander) had written a letter supporting voluntary redundancy for Mr Banas, stating that it was unfortunate to lose his services and that he had given very good service in the region. He had made a strong request to use Mr Banas in the Department and regarded it as a loss if he went elsewhere.

44 Mr Batty was aware of the policy guidelines on displacement contained in Memorandum 96-5, and agreed that the main focus was redeployment in the Department and then redeployment in the public sector. He agreed that the policy held out voluntary redundancy if there was no redeployment in a reasonable period of time. He thought that some time earlier, as a general rule, the reasonable period of time was specified as being 6 months and that might have been specified but he was not sure. At the end of 6 months, serious consideration to voluntary redundancy would be given.

45 In this re-organisation, all the other employees were placed by their own action or by redeployment. To his memory, no one was offered voluntary redundancy in his group although he had not recently looked at the records. There was a case by case approach to "the reasonable period" until voluntary redundancy was considered. Mr Ian Peters had primary responsibility for this policy.

46 The morning after the meeting of 17 February 1997, Mr Banas was informed by facsimile that redundancy would not be offered to him. At the meeting, Mr Banas was given no indication that Mr Woodham and Mr Batty would support voluntary redundancy for him - that was up to the Department Head. They were to tell the Department Head the result of the meeting. The Department Head, Dr Kelleher, sought advice from Mr Batty before making a decision to refuse voluntary redundancy. The Department Head had to be satisfied that the chances of a placement were not strong. The question was: Could there be a placement with the co-operation of all parties?

47 Positions for Mr Banas were being looked at with more administrative features. This was so in relation to the Academy position which had responsibility for catering and other areas. Mr Batty confirmed that in the Central Region there was a position called "Business Manager", and he accepted that this was a position different to that held by Mr Banas. Mr Banas was concerned about his future and there was an emotional overlay to that and that was understandable.

48 Mr Batty explained that a person was not excess when they were displaced and the Department would still be looking to place such a person. Mr Banas had been declared excess about the time he had expressed interest in a position at the Opera House. There was a discussion with the WMC and the declaration was made shortly after that discussion. The problem with the position at the Opera House was that there was a salary differential that took it over the 5 per cent allowance permitted under the policy. There was an allowance that was taken into account with the salary in relation to the Opera House position although the grade was at the same level as held by Mr Banas. The problem was one that was perceived to have arisen on the WMC's interpretation of the policy.

49 In relation to the position at the Academy, all had agreed that Mr Banas had highly developed financial skills. He regarded the position that Mr Banas had held as not being involved with day to day financial matters but did involve some administration. After being shown the duty statement for the position, Mr Batty agreed that there was an emphasis on financial matters but there were administrative roles as well. He understood that, if Mr Banas took the Academy position, his highly developed financial skills would diminish but that would be the same for other officers in a similar position.

50 Mr Batty understood that Mr Banas had rejected the Academy position because of the differential in the budget - this appeared to be a primary reason for rejection. Mr Banas perceived the position to be of a lower status, but he could not recall if Mr Banas said he was worried about the loss of his accounting skills.

51 In Mr Batty's recollection, it was around the end of February 1997 when he referred Mr Banas' case to the WMC to assist in his placement. He was not registered with the WMC at that stage although his resume was sent to the Centre. That was to be kept on file until he was registered. He did not know how the WMC went about assisting in placements sought by Mr Banas. Mr Batty said he was confident that Mr Banas could be placed but agreed that it was difficult to place him in a job with a preponderance of financial duties as there were not many of these positions.

52 In relation to the redeployment policy, Mr Batty said that from the time of displacement an officer could receive a priority placement. He agreed therefore that the declaration of being excess was neither here nor there in obtaining a position on priority. The placement of Mr Banas at the MRRC was considered but he was not the most suitable person for that position. In addition, there was a taskforce to consider position placements under Mr Woodham who would take advice from the taskforce.

53 Mr Batty did not know whether Mr Banas was ever sent a letter informing him that his position had been deleted and informing him of the services available under the Displacement Policy. He accepted that extended periods of uncertainty in employment were known to be stressful. Some people coped with the stress and the policy addressed the availability of stress counselling. He was, however, not aware of such a service being provided to Mr Banas.

54 In relation to the availability of voluntary redundancy in circumstances where there was a workers compensation claim, Mr Batty understood that there would no be voluntary redundancy if the worker was "on workers compensation". Where an employee was on workers compensation, the possibility of voluntary redundancy was discussed with the insurer to check if it was allright to proceed. At the relevant time the GIO was the insurer. 55 Mr Batty understood that Mr Banas had contacted the WMC and insisted on being given a job. He was so insistent that the Centre would not take his calls - they had contacted the Department about Mr Banas' calls. Mr Batty said he may have referred to this as Mr Banas "blotting his copy book". Mr Batty agreed that Mr Banas had become excitable and emotional and that this had occurred two years after he had been first displaced.

56 In relation to the Statement of Duties for Mr Banas' position, Mr Batty said he was not intimately aware of the position but had a general awareness of the tasks involved. He had a working knowledge of the duties at the Academy and that involved planning, staff supervision, budget management, day to day activities in specified areas such as canteen running, stores management and that included financial aspects.

57 Mr Batty said that it was expected that displaced officers would accept new placements which were offered although there would be consideration of hardship, especially financial hardship, in accepting a position offered. If there was a disagreement about the suitability or comparability of the position, then the matter would be sent to the WMC. At the time, they were working under Mr Woodham's direction that positions within the Department should be filled first.

58 Mr Peter Peters, between 1997 and 1998, had been the Acting Director of Personnel Services of the Department of Corrective Services. He had met Mr Banas on 19 July 1997 and discussed two positions with him, the position at the Academy and the Windsor management role.

He had seen Mr Banas at the Norma Parker Centre and had asked him why he was there because he was filling a temporary position and the time for filling that position had expired. Mr Banas said he was reporting to a Mr Paul Byrne in the Operations Branch.

60 Mr Peters said he thought he was close to Mr Banas and was able to discuss matters with him. He said to Mr Banas that there was no real job at the Norma Parker Centre but there was a job of Finance and Administration at Windsor and a job at the Academy. There was also a position at the MRRC for which he could be considered but he told Mr Banas that he might have to compete with another displaced person to obtain that job. Mr Banas had asked if the Department would give him a car if he was to work at Windsor.

61 Mr Banas told Mr Peters that he wanted a response to his earlier correspondence which had not been answered, in which he was pressing for information. He had said that he would not consider anything until he got a response. Mr Peters told him that the Windsor position was available if he wanted it. Mr Peters told Mr Banas that he was well regarded: it was the Department's obligation and Mr Peters had the ability to place Mr Banas at his grade.

62 At the time of this conversation with Mr Banas, the Windsor position was not created formally but its creation was approved by 8 September 1997 (some six or seven weeks after the conversation with Mr Banas).

63 In cross-examination, Mr Peters denied that he had accepted that the Windsor position was not suitable for Mr Banas. He was shown a draft document dated 13 August 1997 which was not signed, but denied that he had ever seen it. He had not prepared the letter and there were three other persons who assisted him who could possibly have written the letter. This letter accepted the inappropriateness of the Windsor position for Mr Banas but Mr Peters said he had no recollection of seeing the document before. He was shown another letter dated 18 August 1997 which was sent, but it was in terms different to the 13 August 1997 draft, which he had not seen and did not refer to the Windsor position as being unsuitable.

64 Mr Peters had seen Mr Banas at the Norma Parker Centre reading a book: in discussions, it became clear that he had no work to do and Mr Peters became worried about his position. At this stage he had been displaced for seven and a half months. Initially there was some work to be done at the Norma Parker Centre.

65 In Mr Peters' view, by July 1997, Mr Banas was not close to voluntary redundancy. In the Corrective Services Department voluntary redundancy was not offered on the criterion of six months without placement. He understood this was the policy, although he had only recently come into his role (on or about 16 June 1997). In his view it was not a matter of assessing what was a "reasonable time" without a placement: the obligation was to look for another position. In any event, at this time the Department was not in a position to offer voluntary redundancy - it was simply "not happening". Redundancy was a last possible option.

66 Returning to the draft letter which had contained the statement that the Windsor position was not considered to be suitable, Mr Peters thought that the likely author was Ms Tarasow and that she may have included that passage in the letter as a conclusion following a conversation she witnessed at Parramatta.

67 A facsimile had been sent to Mr Donohue at the WMC with the draft letter and had been returned with some handwritten notations expressing a view on the draft and its form. Mr Peters accepted that he received that fax. Mr Peters accepted that the letter he signed on 18 August 1997 reflected the contents of the fax from Mr Donohue which he had received and was consistent with its terms.

68 He thought the position at the Academy as Business Manager was suitable for Mr Banas and that Mr Banas was unreasonable in not accepting it. Mr Banas had emphasised he wanted more duties in the financial area.

69 Mr Peters was shown an extended job description for the position at the Academy which listed the primary objectives and its accountabilities. He accepted that there was one major financial component in this extended description but there were other areas where financial capacity was required. It was Mr Banas' choice to accept it or not and there was no pressure applied to him. 70 Mr Peters said that the duty statement represented the maximum that could be expected of a position and that the real content of a position was reflected in the job advertisement. The position at the Academy did not require, as a necessary requirement, qualifications in human resources and others had held the position without having such qualifications. In fact, the position had been held by an education programmer and administrator who had broad experience in the Department. Although Mr Banas did not have, in Mr Peters' estimate, the same breadth of experience as the previous occupant, he had sufficient experience to enable him to perform the duties of this position at the Academy. Mr Peters did not accept that the position involved Mr Banas developing a number of skills and approaches which were not in his present skill set.

71 Mr Peters understood that Mr Banas was very interested in the MRRC position in June 1997. That position was changing to be more administrative and with less emphasis on financial responsibilities. Nevertheless, Mr Peters believed that Mr Banas could perform the duties associated with the position. In relation to the fact that there were two displaced persons interested in that position, Mr Peters thought there should be a merit decision based on interview as to who should succeed. Mr Banas, however, said that he did not want to compete for the job. Mr Banas had contacted Mr Peters about the MRRC position. The position had been filled, according to Mr Banas' information, at the beginning of June although Mr Peters said it was not confirmed until October.

72 In relation to the position in Treasury, it was Treasury's request that Mr Banas do a course to improve his English and that there be a trial period in the position. Mr Peters accepted that Mr Banas was good at his job but not at communicating information orally. The requirement that he undertake a course in English was not offensive to discrimination legislation but was designed to assist him in securing the position at Treasury. Mr Peters could not understand why Mr Banas would feel slighted or uneasy about such a request, considering his background.

73 In relation to the MRRC position, Mr Cruickshank had been appointed to the position although, from documents obtained from the Department's file, it appeared that he was on "secondment" from 20 June 1997 to 31 October 1997. In relation to Mr Cruickshank, Mr Peters believed that he was either displaced or a potentially displaced person. He had been seconded as a Project Officer, Grade 9/10, but that position was deleted and became the position of Finance Manager. This had occurred in September 1997 but, at that stage, Mr Banas had already been told that he had not been successful in obtaining the position at the MRRC. Mr Peters agreed that the policy on displaced persons did not deal with any category of "potentially displaced employees".

74 Mr Woodham, as the Assistant Commissioner, Operations, had been involved in the arrangements concerning Mr Cruickshank. It was a verbal arrangement for Mr Cruickshank to perform duties in the Operations branch. He moved from a project officer Grade 9/10 to the position of Finance Administration Manager Grade 10 - an arrangement that had been in place since June 1997.

75 Mr Peters said he had discussions with Mr Donohue in August 1997 and had a general discussion about what should be offered to Mr Banas by way of alternative employment. Mr Peters in re-examination clarified that Mr Cruickshank was transferred to the Metropolitan Region and was then seconded to the MRRC on 20 June 1997 in the position of Project Officer. 76 From 28 July 1997, Mr Crossley occupied the position of Executive Director, Office of the Commissioner for Corrective Services. Prior to that he had occupied the position of Director - Finance with the Department of Corrective Services. In these positions, he was familiar with the position of Business Manager at the Corrective Services Academy, Eastwood.

77 He had discussed this position with Mr Banas but denied that it was ever his express view that the position was unsuitable for Mr Banas. In fact, it was his opinion, and continued to be so, that Mr Banas would be capable of discharging the duties of the position and he denied that he had ever stated or agreed with Mr Banas that the placement was "unsuitable". Mr Crossley may have agreed with Mr Banas that the position at the Academy may not have been similar to the position he previously occupied but it did represent, in his view, a lateral appointment to a permanent position with a scope to extend its duties and to fully utilise his skills and experience, particularly in the area of financial management. Mr Crossley said he could not understand why Mr Banas would not accept this placement.

78 Mr Crossley stated that, despite the non-availability of a vacant position similar to the one Mr Banas was appointed to prior to December 1996, "… it was in the Department's interest to retain Mr Banas in its employ in view of his qualifications, experience and invaluable operational knowledge. For this reason it was premature to consider voluntary redundancy until all reasonable options of redeployment had been fully explored". 79 In relation to the Treasury position, Mr Crossley had been approached to give an assessment of Mr Banas' ability to perform in that role. Concerns had been expressed about Mr Banas' verbal communication skills with Mr Crossley: he accepted this was not surprising given the requirements of the position and that financial analysts were called upon to discuss fundings and financial management/policy with senior executives of agencies. Mr Crossley was well aware of the requirements of the position because of his experience as a budget inspector with Treasury between 1972 and 1976. He had recommended Mr Banas for the position because he believed he could perform in that role and asked for Mr Banas to be given an opportunity to establish himself. When Mr Banas' difficulty with English was raised, Mr Crossley stated that he was a good officer and capable of performing in that role. From Mr Crossley's experience, it was not unusual for officers to be offered a trial period in such positions.

80 In cross-examination, Mr Crossley was shown the detailed job description for the Eastwood Academy. In his view, Mr Banas would have no great difficulty fitting into the position even though there were tertiary qualifications required and administrative and human resources attributes sought. Mr Crossley had not been aware of this need for qualifications and he was not too sure how Mr Banas would therefore grapple with some aspects of the job. In his view, the job could be carried out by a suitably qualified accountant, someone like Mr Banas. For instance, the essential human resources qualities were only a minor part of the job. He was not aware that the person who had occupied the position before had programmer/education background. He agreed that human resources qualifications were different to administrative skills, which was a more general skill.

81 In August 1997, Mr Bedding was the Acting Director of Financial Services in the Department of Corrective Services. Mr Bedding said that, in the later part of August 1997, Mr Banas was transferred into his branch on a temporary basis to perform project work. The work included work on policies and procedures in relation to the capitalisation of fixed assets and was important work and of sufficient complexity to provide Mr Banas with meaningful tasks. The work had been usually performed by a Management Accountant, Grade 9/10 although some of the work had been previously done at a Grade 7/8 level.

82 Mr Banas had asked about vacancies and acting in vacancies in this Department, but had been told by Mr Bedding that there were none. Temporary vacancies in the branch were reserved to give experience to officers from a more junior level.

83 Mr Bedding said that while he was working in the branch Mr Banas was provided with meaningful work to an equivalent degree of complexity to his grading. This may have involved him, on occasions, performing photocopying and other general clerical duties but this was not unusual as all officers within the branch performed the work needed to be done without regard to whether it might be considered at a lower grade to that of the officer concerned. In this respect, the branch did not and could not operate in a manner where certain tasks were considered to be beneath the dignity of a particular officer. 84 In cross-examination, Mr Bedding accepted that, in early January 1998, he sought to have Mr Banas taken out of the branch and given alternative employment but his memory was not clear as to the circumstances surrounding that move. It was not that they had run out of things to do, because there were always matters to attend to, but it may have been that these were not the best opportunities available for Mr Banas.

85 While Mr Banas was not given an opportunity of working in Grade 9/10 positions on relief, he was given a special project. Mr Bedding said that he had not been spoken to about managing displaced employees and he had not been asked to place Mr Banas into an established position in the branch. 86 Mr Schipp was appointed as the Executive Director of Finance and Asset Management in the Department of Corrective Services in January 1998. He first met Mr Banas in February/March 1998. At that time, Mr Banas did not appear to be suffering from an emotional injury or illness and his role involved him undertaking a number of one-off projects because he did not have a substantive position within the Department.

87 Around April 1998, Mr Schipp took over direct supervision of Mr Banas and discussed his future work plan with him. In meetings, Mr Banas had complained about the work he had been given and Mr Schipp agreed to organise project work for him. Whilst under Mr Schipp's supervision there were a number of projects identified for Mr Banas, the major project being the review of the financial operations of the Corrective Services Academy at Eastwood. The project was undertaken throughout April and May 1998. During this time, Mr Banas had complained about his position saying that he did not want to work at Eastwood or anywhere in the Department but wanted a position in the public service. He also said that he wanted compensation for losing his job and because of the treatment he had received.

88 At the completion of the Academy project, Mr Banas submitted a report which demonstrated a reasonable degree of professionalism and competency.

89 In discussions with Mr Banas, he expressed the view that he was unhappy about the deletion of his former position as the Central Region's Financial Officer. He had an expectation that he would be given a job of a similar nature including location, grade and duties but this had not occurred. He also claimed that he had been offered voluntary redundancy but the offer had been withdrawn and he was upset over this situation. During these discussions, Mr Banas expressed his desire for adequate compensation for what he perceived to be injustice arising from the deletion of his former position. Mr Schipp had explained that the Government's standard redeployment/redundancy policies enabled the Department only to offer him redeployment or voluntary redundancy as there was no provision for compensation and if he wished to follow that option he would need to do it separately. Mr Banas had indicated that he was seeking compensation for a gap of 18 months in missed experience which would now appear in his resume as a result of not finding a new position.

90 Mr Schipp had said previously that he could not understand why Mr Banas did not get voluntary redundancy in the first place, but that was said in the context of what Mr Banas had told him - that an offer had been made and withdrawn and he accepted that to be the truth. Mr Schipp did not know any of the background to the withdrawal of the offer. In mid 1998, Mr Schipp made representations on Mr Banas' behalf to obtain voluntary redundancy as redeployment had not worked and did not appear to be working. From the Department's position financially, it was better to offer him redundancy than paying salary for an employee for whom the Department did not have permanent work. Mr Schipp consulted Ms Lord, the Executive Director, Human Resources, who shared his concerns: at the time the Department was resuming a redundancy process and it was decided to offer Mr Banas voluntary redundancy, which he accepted.

91 Mr Banas was due to conclude his official duties on 28 August 1998. About 19 August, Mr Schipp had spoken with him to ensure that everything was on schedule. Mr Banas told him that he was not leaving on 28 August because he had not yet received a reply to his request for compensation. Mr Schipp told him that the issue of adequate compensation was separate to voluntary redundancy and that he was obliged to continue with the voluntary redundancy agreement that he signed, and to pursue compensation separately. Mr Schipp reported that conversation and the next day gave Mr Banas a letter to the same effect. Mr Banas was requested to give written confirmation that he would commence his exit as agreed but no reply was received. On 27 August 1998, Mr Banas was given a further letter formally advising him of the consequences if he failed to proceed with his exit as previously agreed.

92 Mr Banas attended work on Monday, 31 August 1998. On 1 September 1998, Mr Schipp prepared a briefing note for the Commissioner recommending that, in the circumstances, the offer of voluntary redundancy to Mr Banas be withdrawn and that the Department proceed to place him in a vacant position.

93 Annexed to Mr Schipp's affidavit were correspondence and briefing notes concerning the difficulty experienced in having Mr Banas proceed to voluntary redundancy with his last day on duty being 28 August 1998. The first correspondence from Mr Schipp was dated 19 August 1998 and copies had been sent to Ms Lord, Executive Director of Human Resources, Mr Nash as Corporate Counsel, and lawyers acting for Mr Banas. This letter noted the discussion with Mr Banas regarding his last day of duty prior to proceeding on Job Search Leave prior to proceeding to voluntary redundancy. It was noted that Mr Banas, in the absence of advice from his legal representative, intended to attend for work on Monday, 31 August 1998 rather than cease duty "as indicated in your acceptance of the Department's offer of redundancy." The issue had been discussed with Corporate Counsel for the Department who had advised that the issue of redundancy and the claim for compensation were being dealt with separately. This had been previously advised in June 1998 and noted by Mr Banas himself in his acceptance of the offer of redundancy. Corporate Counsel had discussed the issue of Mr Banas' claim for compensation with his legal representative and had advised that the investigation procedures that were needed to be followed were being pursued as quickly as possible but, as they were governed by the Public Sector Management Act, no guarantee could be given as to the time needed to resolved the matter. Corporate counsel had also advised that, if Mr Banas attended work on Monday, 31 August 1998, contrary to his advice when accepting the Department's offer of voluntary redundancy, the Department would consider such attendance as "a breach of the offer and acceptance of redundancy". The letter required Mr Banas to confirm in writing, by close of business on 21 August, that he was entering Job Search Leave with effect from 31 August 1998.

94 The second letter sent by Mr Schipp was dated 27 August 1998 and was addressed to Mr Banas. It referred to Mr Schipp's previous letter of 19 August 1998 and his request that Mr Banas confirm that he would be entering Job Search Leave as agreed from 31 August. The letter noted that no response had been received by the specified date, namely 21 August 1998, and informed Mr Banas that, if he did not proceed on Job Search Leave as agreed, the Department would consider this as a breach of the offer and acceptance of voluntary redundancy. The letter then stated: Following discussions with both the executive director, human resources and the Department's corporate counsel, I must inform you of the impact that this will have and the action that the Department should be required to take. The offer of redundancy would be withdrawn by the Department following the breach of agreement. Benefits already provided including payment of expenses incurred and salary paid whilst on re-training need to be recovered. The Department would endeavour to place you into a position equivalent to your current salary. If this is not possible, placement at a lower grade with up to 12 months salary maintenance may be provided. Such a placement may not be in your current location and if not, the provision of the Transferred Officers' Award may be applicable. 95 On 1 September 1998, Mr Schipp provided a briefing to the Commissioner in relation to the circumstances surrounding Mr Banas' voluntary redundancy. In that briefing, the Commissioner was informed of the arrangements made for voluntary redundancy and Mr Banas' claim for "additional compensation" and the agreement reached that the compensation claim would be dealt with separately from the voluntary redundancy process. Mr Banas in a letter dated 30 June 1998, had noted that issues of voluntary redundancy and compensation were being treated separately - he had elected to proceed on Job Search Leave on 31 August 1998 and received benefits under the Job Assistance Scheme including reimbursement of expenses and leave to attend various training courses, having accepted the offer of voluntary redundancy. The briefing informed the Commissioner that following the acceptance of voluntary redundancy, "meaningful work" was no longer provided to Mr Banas in order to afford him every opportunity to formulate his job assistance strategy and seek out training needs. However, on 17 and 19 August 1998, Mr Banas had advised Mr Schipp of his intention to continue to attend work as he had not received satisfactory advice regarding the issue of "additional compensation". The briefing from Mr Schipp contained the following: In view of this breach of good faith in the agreement to accept V R and proceed on Job Search Leave I recommend that the offer of V R be withdrawn and the Department now proceed to place Mr Banas into a vacant position. If in fact Mr Banas had formed an intention some time ago not to proceed on Job Search Leave, and notwithstanding that, continued to accept salary payments while not performing any work, it is arguable that he has received money under false pretences. This may amount to a breach of discipline and entitle the Department to recover such payments from him. In the circumstances, I suggest corporate counsel's advice be sought on this aspect.

96 Mr Schipp said that of the four jobs offered to Mr Banas the position at the Academy was the more urgent and appropriate one. He stated that, in June or July 1998, there were voluntary redundancy opportunities because a number of staff had been supernumerary for some time due to initiatives and restructures within the Department. Those without substantive positions were offered voluntary redundancy. He had put Mr Banas forward as a candidate for voluntary redundancy and an offer had been made to him. 97 Between June and July to the end of August 1998, Mr Schipp said that, when Mr Banas was at work and not working on special projects allocated to him, he was preparing his re-training plan as part of the redundancy arrangements. The Department had asked him to submit a re-training plan. 98 The first discussion he had with Mr Banas was at the end of March 1998. Mr Banas was concerned about his CV having a gap due to being displaced. He required adequate compensation for this gap as he would have to explain in future interviews for jobs what he was doing for the past 18 months. He said he did not want to work for the Department of Corrective Services but wanted redeployment in another department. WMC had told him there could be other work available. In this discussion, Mr Schipp had replied that compensation was beyond the Department's guidelines and was a separate issue and, in any event, was beyond his brief. Mr Banas was told that he must see Human Resources or Corporate Counsel about that claim. The Department's commitment to those who were redundant was to get them another job and, if not, voluntary redundancy. 99 In cross-examination, it was put to Mr Schipp that there was no justification for the view that, unless a person took up job assistance they could not take the voluntary redundancy package. Mr Schipp stated that he was not an expert in this area of the guidelines and its application. He concluded that the departure from the arrangements was a breach of the guidelines and then sought advice from Ms Lord and Corporate Counsel.

100 Mr Schipp was aware that Mr Banas had been displaced for 16 months by February/March 1998 when they first met. Mr Schipp accepted that he would not like to be displaced for 16 months, but he did not believe that performing project work left a "hole" in Mr Banas' CV.

101 In his understanding, redundancy was seen as the last part of the process. He emphasised that voluntary redundancy and compensation were separate issues. Voluntary redundancy did not include compensation but Mr Banas seemed to treat it as interwoven. He stated that the option of cutting off the Job Search Leave was not really considered: if it had been considered, it was rejected.

102 When asked what was the agreement that had been breached by Mr Banas, Mr Schipp said that he believed that it was not a concluded agreement although he could not recall any specific correspondence. He did not know when the Department got back to Mr Banas in relation to his claim for compensation.

103 Ms Lord had no contact with Mr Banas until she was appointed the Executive Director, Human Resources Management for the NSW Department of Corrective Services in April 1998. She first met Mr Banas when he was referred by Mr Schipp in May 1998 to carry out an important project in devising a costing and pricing structure for the Corrective Services Academy at Eastwood which was at the time the subject of a major review. Mr Banas carried out the work, which was at times based at the Academy, and presented a final report which was thorough and demonstrated a "high level of expertise" in the subject matter. The report was presented to a meeting attended by Ms Lord and the senior management of the Academy: Ms Lord expressed the thought that Mr Banas could then continue to assist the Academy to implement the plan. The project had ended about July 1998.

104 Ms Lord understood Mr Banas to be an officer of good repute, capable of undertaking quite complex accounting procedures and development work. She found him to be capable, as described, in undertaking the Academy project and expected that he could be easily placed in a suitable job, "such as that at the Academy". The displaced employees' policy was to pursue redeployment prior to any consideration of voluntary redundancy: voluntary redundancy was "the last resort under the policy".

105 By June 1998, Ms Lord had reached the view, as a pragmatic matter, that redundancy ought to be considered although redeployment was still feasible. She said that she was concerned that the matter had dragged on for some considerable time and that Mr Banas had expressed an unwillingness to take up any of the positions offered to him. She was also anxious to bring to a conclusion any outstanding matters associated with the closure of the Department's Central Region. Ms Lord sought and obtained approval to offer Mr Banas a redundancy package as was set out in a letter addressed to him on 18 June 1998. That letter set out the terms of the package and contained a provision whereby Ms Lord had determined 30 June 1998, "as an appropriate last day of service unless special circumstances could be demonstrated". Mr Banas thought that this was a letter of dismissal in its terms, but that was denied by Ms Lord. The letter was simply acceding to Mr Banas' request for voluntary redundancy. Ms Lord said she was unaware at the time she wrote the letter of 18 June that Mr Banas was seeking compensation over and above voluntary redundancy. 106 Ms Lord confirmed that she did meet Mr Banas at his request on 18 June 1998 to discuss his redeployment. During the course of this meeting, she became aware of Mr Banas' letter to the Commissioner of 12 May 1998. In that letter, amongst other things, Mr Banas had said that redundancy was the only permanent solution and he had not been given any other realistic alternatives. However, for the outcome to be fair the redundancy package had to include additional compensation for the damage "the Department had caused him". That was a "fair outcome" in terms of the displaced employees' policy. Ms Lord said that she explained the redundancy package in detail to Mr Banas as he appeared not to have any understanding of the benefits available. The meeting concluded on the basis that she would follow up matters that he had raised in his correspondence of 12 May 1998.

107 Ms Lord said that she received a further letter from Mr Banas dated 19 June 1998, in which he raised a number of matters concerning the redundancy package and the conditions of the Job Search Leave. At the conclusion of that letter, having recorded the agreement to alter the termination date of his service to allow him to complete appropriate training courses before commencement of Job Search Leave, with a termination date to be determined after he provided her with his training plan, Mr Banas said that he understood the Department's legal branch would write to him separately on the issue of "the fair outcome", which he raised in his latest correspondence to the Commissioner and the Director-General of the Premier's Department. Ms Lord said she met Mr Banas on 24 June 1998 and 26 June 1998 to discuss, amongst other things, his training plan and the job assistance scheme on his last day of service. Mr Banas had proposed that because of the training course and the examinations he was pursuing, that his last day of service should be shortly after 20 November 1998, and that his Job Search Leave should start 12 weeks earlier, ie on Monday 31 August 1998. Ms Lord informed him that he could go on Job Search Leave on either 18 July 1998 or 20 November 1998 but that it was not convenient for him to attend certain nominated training courses during work time. On 26 June 1998, Ms Lord also informed him that the Department intended to treat the issue of additional compensation as a separate matter and that it was not possible to deal with his claim for additional compensation at that time. Ms Lord also informed Mr Banas that the Department would extend the offer of a redundancy package until 30 June 1998 and he was handed a letter to that effect. In that letter, Ms Lord required a response from Mr Banas accepting the voluntary redundancy package by 30 June 1998. The letter records that she had accepted the advice of Corporate Counsel that the claim for compensation would be dealt with as a separate issue and that the claim for compensation could not be concluded "at this time".

108 Ms Lord stated that it was standard procedure, in making offers of voluntary redundancy, to make the payment of a bonus of 8 weeks' salary contingent upon acceptance of the offer within a nominated time, most often two weeks. By letter dated 30 June 1998, following the extension granted by Ms Lord, Mr Banas accepted the standard redundancy package. In Mr Banas' letter of acceptance dated 30 June 1998, he elected to perform work until 28 August 1998 and then commence Job Search Leave on 31 August 1998. After referring to some other details, the letter stated: I noted your advice that the issue of compensation will be dealt with separately and I will hear about it at a later time. I accept the standard government redundancy package under the above terms.

109 On or about 3 July 1998, Ms Lord received a letter from solicitors acting for Mr Banas. That letter acknowledged that the voluntary redundancy package had been offered and accepted by Mr Banas and accepted the terms of the letter of 26 June 1998, whereby Mr Banas' claim for compensation would be dealt with as a separate issue to that of redundancy. The Department was invited to consider Mr Banas' case for compensation and to put forward a proposal for consideration. Having regard to the delays already experienced and the considerable complexity of the matter, the proposal was asked to be forwarded within 14 days. In closing, the letter noted that Mr Banas would not hesitate to commence legal proceedings under s 106 of the Act should a suitable outcome not be achieved from the proposed discussions. Ms Lord forwarded that letter to Corporate Counsel, Mr Nash. 110 Ms Lord emphasised that she and others had explained to Mr Banas that the confirmation of his last day of duty and entry on Job Search Leave was "integral to the offer of voluntary redundancy and that his refusal to enter on to Job Search Leave amounted to a repudiation of the agreement". Ms Lord confirmed that, on 1 September 1998, Mr Schipp prepared a briefing note for the Commissioner recommending that, in the circumstances, the offer of voluntary redundancy be withdrawn and that the Department proceed to place Mr Banas in a vacant position. At this point, it is appropriate to note that, on 19 August, Mr Schipp had written to Mr Banas advising that, if he attended work on Monday, 31 August 1998, the Department would consider such action as a breach of the offer and acceptance of redundancy. This was followed by a further letter dated 27 August 1998 by Mr Schipp pointing out that no reply had been received from Mr Banas and informing him that. if he did not proceed on Job Search Leave as agreed the Department would consider such actions to be in breach of the offer and acceptance of voluntary redundancy. Following advice of Corporate Counsel, the Department would withdraw the offer of redundancy following Mr Banas' breach and benefits already provided, including payment for expenses and salary whilst on retraining, would be recovered. It was stated in this letter that the Department would endeavour to place Mr Banas into a position equivalent to his current salary and if that was not possible he would be placed at a lower grade with 12 months' salary maintenance. Such a placement may not be in his current location and, if not, the provisions of the Transferred Officers' Award would be applicable.

111 Also, on 1 September Mr Banas wrote again to Ms Lord concerning a position of Senior Corporate Development Analyst Clerk Grade 10/11 in the Management Services Division of the Treasury at Parramatta. In that letter Mr Banas recounted his experience at a high level and the demoralising effect of not having appropriate work allocated to him. He drew attention to an enclosed advertisement for the Treasury position at Parramatta, stating that it was in line with his qualifications and experience and was also located at Parramatta in close proximity to his home. He asked if arrangements could be made for his secondment to this position "until a fair outcome is achieved with respect to my re-deployment process". Ms Lord said that, on receiving this letter she formed the view that Mr Banas had resiled from the agreement reached in relation to his voluntary redundancy. She was also aware from correspondence addressed to the Primer's Department that Mr Banas did not intend to abide by the earlier agreement.

112 Mr Banas had written to the Director-General of the Premier's Department on 28 August 1998. He referred to complaints of misconduct in administration involving the Department of Corrective Services, the Railway Services Authority, the Roads and Traffic Authority and the Workforce Management Centre. He complained that he had heard nothing about his complaints but, since 15 July 1998, he had been receiving intimidating and threatening letters from the Department of Corrective Services which had attempted to pressure him to resign from the Service and discontinue his duties on 28 August 1998. The Department had advised him of the necessity of taking the redundancy package despite the Government's commitment to there being no forced redundancies. When he agreed to accept the offer of redundancy a deadline was imposed by the Department. In addition, the issue of compensation was being dealt with separately but had been delayed by the application of "unfair delay tactics". Mr Banas had been advised that no guarantee could be given as to the time that the investigation procedure would take in relation to the compensation issue. Mr Banas stated: The issue of compensation is the most important condition of my departure from the Service. As you know, my career had been destroyed by my forced re-deployment and I am now practically unemployable in the private sector. Therefore, I have decided not to terminate my employment with the New South Wales Government until the issue of compensation has been addressed. I understand that under the policy, a displaced employee accepting an offer of voluntary redundancy does not have to terminate employment within the time specified by his/her employer. The policy provides only that in case of compliance with the employer's terms, the employee is entitled to additional payments of 2 to 8 weeks' pay depending on the years of services. The DCS is not respecting my rights to remain in the Service and is pressuring me to resign under duress. As you will see from the enclosed correspondence, they have been threatening to withdraw the offer of a redundancy package, and deny me the training assistance (previously agreed upon) to which I am entitled under the policy. They have also threatened me with forceful redeployment to some position of lower classification in a remote location.

113 Mr Banas repeated his desire to be dealt with under the policy and to finalise his case justly by presenting him with either a fair financial compensation or a fair job offer. While these matters were being sorted out he asked to be permitted to attend work as usual.

114 On 8 September 1998, Ms Lord wrote to Mr Banas advising him of the Department's decision to withdraw the offer of voluntary redundancy having regard to his failure to proceed on Job Search Leave. That letter repeated the view that Mr Banas had breached the offer of voluntary redundancy. He was then informed that a review had taken place of all vacant positions at Mr Banas' substantive grade (with positions outside the Sydney metropolitan area being excluded or positions identified for deletion or re-grading under the current restructure). Having invited him to nevertheless nominate a position if he was interested in work outside the metropolitan area, the letter continued: Having regard to your skills and experience, I believe one of the following vacant positions would be the most suitable: Audit Manager, Clerk Grade 9/10 Business Manager, Clerk Grade 9/10, Corrective Services Academy .

115 Ms Lord offered to discuss Mr Banas' placement in either of these positions or any other position he would like to be considered for, but if he was unable, or failed to nominate a preference within 7 days he would be informed which position was selected to be the most appropriate. On 13 September 1998, Mr Banas returned the letter to Ms Lord stating that he had nominated a legal representative and that he could not accept the correspondence in the circumstances.

116 Mr Banas reiterated concern at not being allocated any work and concluded by indicating his readiness to accept temporary placement into the position he identified with the Treasury at the Office of State Revenue in Parramatta until the Department had dealt with his compensation issue.

117 On 17 September 1998, Ms Lord wrote to Mr Banas informing him of her decision to appoint him to the position of Business Manager, Grade 9/10 at the Academy. His first day of duty at the Academy was nominated to be Monday, 28 September 1998. Although it is not stated in her letter, Ms Lord in her affidavit said that this appointment was made pursuant to s 50 of the Public Sector Management Act 1988.

118 Ms Lord was subsequently informed that Mr Banas was ill and would be unfit for duty until 9 October 1998. Ms Lord wrote to Mr Banas on 24 September 1998, acknowledging his absence on sick leave until 9 October 1998, and informing him that his immediate supervisor was now Mr Greene, Dean of Studies at the Corrective Services Academy and that all files had been transferred to Mr Green in relation to Mr Banas' service. Mr Banas was told to direct all future administrative advice such as absence on sick leave to Mr Greene in accordance with "normal protocol".

119 On 9 October 1998, Ms Lord received a telephone call from a partner in the firm of solicitors acting for Mr Banas. She was asked whether the Department would consider reinstating the offer of voluntary redundancy, to which she replied "Yes, on the same terms as before". Later in the day, a letter was received from Mr Banas' solicitors recording their client's instructions that he accepted the Department's offer of voluntary redundancy following the earlier confirmation that such was available in terms of the original offer. That letter contemplated that necessary paper work would have to be completed to finalise the arrangements.

120 To the best of Ms Lord's recollection, in early November 1998, before the paper work had been fully prepared, she received advice that Mr Banas had, or intended to submit, a claim for workers compensation. To the best of Ms Lord's recollection, another officer informed solicitors for Mr Banas that, under the policy guidelines, voluntary redundancy was not possible whilst there was "extant and unresolved workers compensation claim".

121 Mr Banas had supplied a "medical certificate under WorkCover" which stated that, following an examination on 22 September 1998 it was the doctor's opinion that he was suffering from depression with a treatment programme of anti-depressants. He was certified to be unfit for work until 24 December 1998. Under the section dealing with diagnosis the form stated: In my opinion, the worker's employment is/is not consistent with work being a substantial contributing factor to the injury. Neither the word "is" or the words "is not" were struck out by the certifying doctor but, in the space underneath this line, the words "at work" were entered in handwriting. By letter dated 14 December 1998, Mr Banas wrote to Ms Lord complaining that he had sent the medical certificate to the Department on 10 November 1998, and that he should have been provided with a "workers compensation claim form" but this had not been supplied. He expressed his concern at delays which may disadvantage him financially and "prejudice the outcome of my claim". 122 Ms Lord stated that at no stage was the Department made aware by Mr Banas' solicitors that he was prepared to drop his claim for workers compensation. This was significant because "the policy does not and cannot operate to prevent an employee pursuing his entitlements to workers compensation but that such claims must be finalised before a voluntary redundancy can be effected".

123 Mr Banas' claim for weekly payments of compensation was denied and, on 22 February 1999, Ms Lord arranged for him to be assessed to determine his fitness to continue employment in the public sector. Ms Lord's letter to the Director of the Medical Examination Centre set out the employment history of Mr Banas and the fact that he was a displaced person and that efforts had been made to place him in another position. The letter noted that voluntary redundancy was offered but had been declined and that Mr Banas had been placed in the position of Business Manager at the Corrective Services Academy. It was also noted that Mr Banas was to enter on duty in that position on 28 September 1998, but proceeded on sick leave. The letter continued: As the Department has concerns regarding Mr Banas' fitness it is requested that a medical examination be organised as soon as possible to determine Mr Banas' fitness while he continues in employment. This letter does not acknowledge that Mr Banas had subsequently been offered voluntary redundancy and had accepted it but that its terms could not be implemented because of the outstanding workers compensation claim. 124 On 27 April 1999, the New South Wales Government Medical Officer provided the Department with a report on Mr Banas' health. On examination, it was recorded that Mr Banas was found to have labile hypertension, treated hyperlipidaemia and atypical chest pain. However, none of these conditions was said to preclude his returning to work with the Department of Corrective Services. Mr Banas also underwent a psychological assessment. The report concluded with a diagnosis that Mr Banas was suffering from an adjustment disorder and that the condition was likely to be exacerbated if he returned to work in the previous work environment, a view which was supported by Mr Banas' treating doctors. The view was expressed that his symptoms were not, however, of sufficient severity to preclude a return to his usual duties in another department. The report concluded with the following recommendation: It is advised that Mr Banas not return to work with the Department of Corrective Services due to the risk of exacerbating his condition. At present, however, his symptoms are relatively mild and would not preclude administrative work elsewhere. Redeployment is advised as he remains fit for his substantive duties outside the Department of Corrective Services. 125 Following receipt of this medical report, Ms Lord, on 3 May 1999, wrote to the Director-General of the Public Sector Management office. In this letter, Mr Banas' employment history and the offers of voluntary redundancy, the withdrawal of the offer, the placement of Mr Banas in the position at the Academy and the reinstitution of the offer of voluntary redundancy were set out, as was his claim for workers compensation, its rejection and conciliation proceedings in relation to that claim. The letter noted that Mr Banas' current position was that he had been substantively appointed to the position of Business Manager at the Corrective Services Academy. He had exhausted all leave credits and had been taken off the payroll and had not supplied any leave requests since 24 February 1999, but rather was shown as being on unauthorised leave pending the supply of further medical certificates and leave forms. In light of the recommendation made by the Government Medical Officer, assistance was sought in arranging redeployment to a department other than the Department of Corrective Services.

126 On 30 April 1999, Mr Banas wrote to Ms Lord advising her of his complaint against his solicitors for failing to notify the Department of his decision of 25 November 1998 not to lodge a workers compensation claim but rather to receive the redundancy package. He advised that he had made a complaint against his solicitors to the Legal Services Commission.

127 Mr Banas was informed of his right to appeal against the medical assessment and was also advised by Ms Lord that the Department would wait on his decision to appeal before taking any action on the recommendation contained in the medical reports. He was advised that, if no appeal was lodged then the WMC would to be asked again to review placement options in other public sector agencies " in keeping with the terms of the medical assessment". On 9 June 1999, Ms Lord received a letter from Mr Ian Peters, Director Employee Relations, Public Sector Management Office regarding the redeployment of Mr Banas. The letter noted that Mr Banas held a substantive position of Business Manager at the Academy and that redeployment was being sought, not on the basis that he was being displaced because his substantive position was being abolished, but because of medical advice. Ms Lord was advised that redeployment in accordance with the policy "would not be appropriate" in such circumstances. The WMC was able to assist in exploring redeployment opportunities for Mr Banas as part of a 6 month rehabilitation plan that should be developed by the Department taking into consideration the medical report, possible management development programmes and possible adjustments to services and facilities in accordance with the Premier's Memorandum 98-1.

128 In the meantime Mr Banas had asked for and had been granted an extension of time to appeal to the medical appeal panel. The appeal was extended to 2 July 1999 but, if not received, would be deemed to have lapsed.

129 On 2 July 1999, Mr Banas wrote to the Commissioner of the Department outlining the delays that had been encountered by him. In the course of that letter Mr Banas stated: I have decided to proceed on Job Search Leave in accordance with my redundancy contract. I will commence Job Search Leave on Monday, 5 July 1999 and I will actively seek alternative employment outside the New South Wales public sector. Therefore, I am requesting the Department to start paying my salary to bank account. My last day of service with the New South Wales public sector will be on 24 September 1999 (12 weeks from 5 July 1999). I understand that if I obtain and commence a job during the period of the Job Search Leave, I will inform the Department in writing and the period of leave will cease from the date that I commence the new job. 130 Ms Lord asserted that, until agreement was reached in December 1999, Mr Banas had no entitlement to any redundancy package arrangement. She stated in her affidavit that, following the institution of proceedings, further negotiations took place which resulted in a fresh offer of redundancy by the Department which was accepted by Mr Banas. Ms Lord asserted that the proceedings instituted by Mr Banas were entirely lacking in merit.

131 In cross-examination, Ms Lord said that, when she first met Mr Banas in May 1998, he had not been quickly offered voluntary redundancy because of the length of time he had been displaced: there were a number of matters to be tidied up and the obligation was to redeploy displaced officers. She was concerned that Mr Banas had been displaced for 18 months and that most people who had been displaced were in some sort of position by that time. She said that the Department's practice was unclear as to when persons were finally and firmly placed, but most were in meaningful work at the time.

132 In Ms Lord's view, Corrective Services prided itself on being able to place people who were displaced. There was some latitude in the application of the policy, with some departments quickly offering voluntary redundancy, while others took the view that they could find jobs and would take the time to look for them for their displaced employees. This depended on the position involved and the particular background may make a person harder to place.

133 There was also a budgetary consideration: Treasury approval was needed to offer voluntary redundancy. The money for voluntary redundancy came from the Department's budget. Treasury approval for offering voluntary redundancy had lapsed in mid-1997 and had to be renewed. Voluntary redundancies were decided on the basis of a plan and not individually.

134 Ms Lord was familiar with the Displaced Persons Policy and described it as imparting knowledge to displaced persons and their administrators. There was usually union consultation involved in framing the policy but the policy was sometimes not enough and further discussion and union consultation was necessary to provide particular information. The policy was available on the Internet and was now broken into "frequently asked questions". Ms Lord accepted that the policy was not an easily digestible document but said that it was framed mainly for administrators.

135 Ms Lord's approach was to talk at length with the displaced person to allow a better understanding of their position and to explain any issues in "a warm atmosphere". She had adopted this approach in relation to Mr Banas. It took her a long time to come to the view that Mr Banas could not be placed: he was always an officer in good standing.

136 In relation to the position at the Academy, Ms Lord said that it was about "marketing" the Academy, developing pricing policies for Academy programmes, business plan development and allowing the Academy to sell its product. However, the position was not simply a PR position but the role did require communication with a wide range of people.

137 When cross-examined as to the content of the statement of duties for the Academy position, Ms Lord disagreed that it contained strong operational elements. In her view, the job description was out of date and she had informed Mr Banas what was involved in the position. In her view, the job description covered all that might be done in a position but the focus can change, for example, there are day-to-day tasks and others that are performed once a year or less frequently, such as budgets. Ms Lord agreed that there was no other document which was a more reliable indication of the duties to be performed by the holder of the position at the Academy.

138 Ms Lord stated that the displacement policy specified that there was to be a "reasonable" time before voluntary redundancy was offered and that time used to be specified as six months from when the person was declared excess. Her understanding of the steps involved commenced with the possible restructure; displacement of the officer; the seeking of redeployment and perhaps retraining; if these steps were not successful, to declare the officer excess and the officer would be eligible for voluntary redundancy. This was the procedure that was followed in Mr Banas' case. (It is worthy of note that the guidelines refer to voluntary redundancy being available 6 months from displacement and not from the time the officer was declared excess). 139 In relation to the voluntary redundancy offer of 15 June 1998, Ms Lord accepted that the Job Search Leave was paid out and was not to be regarded as part of service. She could not understand how Mr Banas took this offer as a termination or a directive as it was an offer which they could talk about. Ms Lord accepted that, while the letter proposed a timetable, it was open for discussion. She had given Mr Banas until 30 June 1998 to respond to the offer and he had replied by that date. Ms Lord could not accept that Mr Banas' response was a conditional acceptance dependent on compensation being paid. It was not until March 1999 that Mr Banas was informed by letter that there was no evidence to support the payment of compensation in addition to the voluntary redundancy package.

140 After the withdrawal of the voluntary redundancy package and its re-institution in October 1998 following representations made by solicitors for Mr Banas, a problem had arisen with the payment of the redundancy package because of Mr Banas' claim for workers compensation. Ms Lord said that, when Mr Banas filed the workers compensation claim, under the policy, that step resulted in putting the offer on hold although it did not operate as a withdrawal of the offer. Ms Lord's attention was drawn to the terms of the policy which referred to compensation claims for "termination", which was not a proper description of Mr Banas' situation. Ms Lord said that, while he had not proceeded on workers compensation, he had filed a claim which was refused - in those circumstances, Mr Banas was never "on workers compensation".

141 Ms Lord stated that the redeployment issue had been satisfied after the placement of Mr Banas at the Academy. She agreed that, once appointed to the Academy, that position was not deleted and under the guidelines voluntary redundancy was not available in 1999. She agreed that Mr Banas had not been handled well by the Department.

142 Between September 1996 and January 2002, Mr Cowell occupied the position of Manager, Monitoring and Co-Ordination, NSW Premier's Department. In that role, Mr Cowell provided advice on major restructuring and also managed and co-ordinated sector wide projects. In late August 1997, Mr Cowell had been asked by Mr Ian Peters, Director of Employee Relations in the Public Sector Management Office, to investigate a complaint made by Mr Banas against Mr Peter Donohue of the WMC. Mr Banas had complained about the lack of co-operation and activity in assisting him in finding a new position in the public service.

143 On around 9 September 1997, Mr Banas and Mr Cowell met in relation to Mr Banas' complaint. Mr Cowell accepted that he spoke about remedies and whether Mr Banas would like to get a redundancy package to which Mr Banas replied he would like to get a suitable government job but not in the Department of Corrective Services. Mr Banas had agreed that he wanted a job as an accountant close to home. At this meeting, Mr Banas was asked to outline his main complaints. Mr Banas had said that Mr Donohue was not helping him but was helping the Corrective Services Department: he was communicating with them and was "on their side". Mr Donohue was siding with the Department's representatives in pushing Mr Banas to accept positions which were outside the metropolitan area or below his previous work value. He was not assisting in finding Mr Banas a suitable placement.

144 During this conversation, Mr Cowell told Mr Banas that when he first approached the WMC Mr Banas was "not strictly eligible to seek that office's assistance". The Corrective Services Department did not then consider Mr Banas an excess employee and was still offering to place him in a suitable position within the Department - placements within the Department had to be considered first before placements elsewhere could be considered. He told Mr Banas that he had to understand that he had a duty to co-operate with the Department's efforts to redeploy him and that he should understand that at the end of the day the Department could transfer him to a job at the same grade.

145 Mr Cowell also explained how the displacement policy operated when applying for positions and that the policy could not be used to obtain a promotion. The 5 per cent or 1 grade guideline was explained as dealing with salary differentials arising from different grading structures occurring between public sector authorities where the positions were essentially equivalent work value.

146 Mr Cowell prepared a report for the Director-General concerning Mr Banas' complaints. In that report, Mr Cowell found no evidence to support the complaint that the Corrective Services Department was not genuine in its attempts to redeploy him and that there was a departmental bias against him. He recorded that Mr Peters from Corrective Services had conceded that, at times, Mr Banas had not "been actively managed and that this could have resulted in him assuming that the Department was not interested in his case".

147 Under the heading "Comment", Mr Cowell made the following observations: Mr Banas sought assistance from the WMC, not only when his eligibility was problematic but also for positions which would have resulted in promotions beyond the level envisaged in the managing displaced employees policy (5 per cent or 1 grade). An attempt to explain the policy to him in a joint meeting with CS (Mr Peters) and Mr Donohue on 30 July 1997 was interpreted by Mr Banas as a co-operative effort by the WMC and CS to coerce him to accept a position offered to him by CS. CS have offered Mr Banas three positions at his substantive grade. He had declined the positions on the basis of suitability. … Mr Banas was formally declared excess on 1 September 1997 and the full services of the WMC are now available to him. Mr Banas attended an information service held by WMC on 25 September 1997 and raised a number of concerns outlined in his letter. These concerns were addressed during the information session. It would appear that Mr Banas has unrealistic expectations of his finding a position which completely matches his preferences. Mr Banas has sought voluntary redundancy which has been denied on the basis that internal positions have been available. His lack of co-operation in internal placement may have regard to this factor. …

148 Mr Donohue, in 1997, was a Senior Industrial Officer with the New South Wales Government Workforce Management Centre. Mr Donohue recalled that he had been contacted by Mr Banas late in May 1997, and did not disagree that he said words to the effect that the WMC could not assist Mr Banas as it did not have any records as to his displaced or excess status. Mr Donohue suggested that he speak to Mr Batty. Mr Donohue believed that he said to Mr Banas that, in order for the WMC to assist him, his Department had to register Mr Banas as a displaced employee with the Centre. In order to be classified as a displaced employee, the Department had to state that either his position had been abolished or substantially moved to another location or would be abolished or moved in the near future. In the case of an excess employee, such a person was one who had no substantive position in the Department and the Department could not find a position at the employee's substantive level for that employee. Mr Donohue said that he also explained to Mr Banas the entitlements of an excess employee including that if he was given work at a lower work value level, he was entitled to be maintained on his current salary for 12 months. He recalled telling Mr Banas that declaring an employee a displaced employee enabled the Centre to provide early assistance to that employee rather than waiting for the employee to be declared excess. To the best of his recollection, Mr Donohue also stated to Mr Banas: An employee is however neither a displaced employee nor an excess employee when the employee's position disappears but rather when there is no other position available to him within the agency.

149 When Mr Banas first contacted Mr Donohue, it appeared that he had approached the Centre without the knowledge of the Department of Corrective Services and had also applied for a number of positions on the basis that he was a displaced employee under the relevant policy. Even if he was registered with the Centre, there were positions he applied for which he would not have been entitled to as a priority placement because his remuneration exceeded 5 per cent of the salary differential as outlined in the policy. The effect of the policy was explained to Mr Banas in writing. One position that Mr Banas had sought was at the Sydney Opera House as the Manager of Financial Services. The salary was $55,446 which, according to Mr Banas was only 1.9 per cent above his substantive salary as a Grade 9/10 clerk. However, the total remuneration package for the Opera House position was $76,793. Thus, it was explained the Opera House position was not one which Mr Banas could seek as a priority appointment as a displaced person. 150 At around the same time, Mr Donohue had written to Mr Batty of the Department of Corrective Services concerning Mr Banas' redeployment enquiries. In that correspondence, it was advised that the Centre was not aware of Mr Banas' displaced or excess status and was therefore unable to arrange a priority assessment interview. In addition, it was advised the position in the RSA was not available to him because the salary level was approximately 7.5 per cent higher than his substantive grading. In this correspondence, Mr Donohue stated that he had advised Mr Banas that he should contact his own Department to clarify his status and that Mr Batty was the appropriate contact for that purpose.

151 On or about 22 July 1997, Mr Donohue received a standard form of registration for Mr Banas with the Centre from the Department of Corrective Services. The document had been signed by Mr Peter Peters and Mr Banas. That document certified that Mr Banas was available for redeployment from 16 December 1996. It confirmed that the employee was not subject to any sub-standard or other performance issues and did not have any known injury or disability that may constrain redeployment efforts. In the section of the standard form which was to be filled out by the employee, Mr Banas nominated Parramatta, Blacktown, Strathfield, Ashfield and Homebush as geographical locations he preferred to be redeployed to and also indicated the type of work he preferred as being finance manager, accountant.

152 Mr Donohue noted that the standard form, in the part to be completed by the Chief Executive officer or the approved delegate (here Mr Peter Peters), the words "and cannot be currently transferred to other alternative employment within this agency" had been deleted by drawing a line through those words. It was not policy to register an officer as a displaced employee with the Centre while there was an available position of equivalent grade which the officer could be placed in within the Agency. This raised a concern in Mr Donohue's mind as to why Mr Banas was being registered with the Centre when there were apparently positions within the Department in which he could be placed. Mr Donohue was also concerned that Mr Banas did not wish his skills and experience details to be circulated to all public sector agencies for redeployment and recruitment purposes because he wished to be notified of the vacancy and to be provided with details of the position first. In Mr Donohue's view this would hinder the placement process and would result in Mr Banas not being included on the monthly list of displaced officers that was circulated to heads of agencies and also would restrict the Centre in forwarding his CV to an agency that may have a vacancy.

153 These concerns led Mr Donohue to arrange a meeting with Mr Peters and Mr Banas on 30 July 1997. To the best of his recollection of that meeting Mr Donohue said the following: Mr Banas, this meeting has been called at my request to clarify your employment status in respect to your request for re-employment assistance. Redeployment assistance, including priority assessment for vacant positions, can be provided through the Centre to displaced employees. The Centre must ensure that this priority status is appropriately used. In your case the Department has been unable to certify that you cannot be transferred to other alternative employment within this Agency. In the course of the meeting, Mr Donohue also told Mr Banas that he had been informed that Mr Banas had refused to accept placement in a suitable position at his existing grade. Mr Banas had explained that the positions he had been offered were not suitable and would involve extra travel - they were not near his home and were not really Grade 9/10 positions. In the course of the conversation, Mr Donohue pointed out to Mr Banas that the Department had power to transfer him to a vacant position at his existing grade.

154 Despite Mr Donohue's concerns, apparently Mr Banas was registered and his details were circulated to other agencies in the normal course.

155 During the course of this meeting Mr Donohue informed Mr Banas that the Centre had earlier provisionally registered him and his priority assessment for the position of accountant revenue with the New South Wales Treasury would continue.

156 Mr Banas had obtained his file from the Centre under a Freedom of Information application. Access to that file disclosed that there was a handwritten note, from Mr Donohue, stating that Mr Banas was not to be registered until Mr Donohue gave the "okay". That was signed by Mr Donohue and dated 8 August 1997. Mr Donohue said that the note was placed on the file to ensure that formal registration would not be effected until the Centre had received the appropriate advice from the Department. Mr Banas was registered with the Centre on receipt of certification from the Department on 28 August 1997.

157 Mr Donohue denied telling Mr Banas in their meeting on 30 July 1997 that the position at Windsor was clearly outside the metropolitan area and therefore he could not be required to take that job.

158 In cross-examination, Mr Donohue said he was aware of the policy memorandum 96/5 and that he worked to the detail of this document. He said the document set out the framework of operation but did not set out the day to day work of the Centre. When asked if there was anything in operation beside the policy, Mr Donohue said there was a broad framework for managing displaced persons and the day to day operation of the Centre was not set out in the policy. Matters such as the registration form were not set out in the policy nor how to advertise vacancies or the details of the matching process. 159 When asked what rights employees have in the matching process, Mr Donohue said that the displaced employee was told of a position by the Centre - the employee and the home agency were notified of a position that looked suitable. If the displaced person thought the job unsuitable the employee could talk to the agency and the Centre and the match could be withdrawn.

160 Mr Donohue said that the case managers at the Centre developed a skill survey of those displaced and tried to match this with advertisements, taking into consideration location, shift work and weekend work and the like.

161 Mr Donohue agreed that a person was displaced when they lost their job. The Centre had been involved with Mr Banas from the time of his displacement, although Mr Banas was not displaced because he had other offers. He had been sent a letter by Corrective Services regarding a position at Windsor and had recommended changes to that document. The draft of that letter from the Acting Director stated that the Windsor position was not suitable.

162 In relation to the displacement policy allowing a salary difference of one grade or 5 per cent in order to obtain a priority placement, Mr Donohue confirmed that this was not to be used for promotion purposes. The 5 per cent or one grade allowance was to permit movement across different award structures, for example, a community service position Grade 5/7 would permit a transfer to a position graded 7/8.

163 Mr Donohue said that it was not within his power to recommend voluntary redundancy for Mr Banas: that was up to his Department and they had positions for him. He had not independently analysed Mr Banas' position but had been told by his Department that there were suitable finance positions available for Mr Banas. Mr Donohue agreed that sometimes the only option was voluntary redundancy, but what was a reasonable time to consider voluntary redundancy depended on the circumstances. Sometimes it was appropriate from day one, in other cases, the skills and experience were needed in the public sector and, depending on the job advertisements, six months may be an early period to offer voluntary redundancy. For instance, this may be particularly so at a lower grade level (for example Grade 1/2).

SUBMISSIONS FOR THE APPLICANT 164 It was submitted for the applicant that Mr Banas was, despite his employment under the Public Sector Management Act, 1988, also subject to a contract of employment. The position was not one within the Senior Executive Service and caught by the considerations which led to the determination in Lynn v Byron (1995) NSWIRComm 114 and in Grant v State of New South Wales (No 2) (1991) 48 IR 314. In those cases, it was established that the legislature intended the employment rights of the persons to whom the statutory provisions applied were to be determined exclusively within those statutory parameters.

165 While it was accepted that any contractual relationship must be consistent with the statutory provisions which affect that relationship (Director-General of Education v Suttling (1986-87) 162 CLR 427 at 437-438) it was submitted that there was nothing about ss 50, 51, 52 and 53 of the Public Sector Management Act which put such provisions beyond the Court's jurisdiction under s 106 of the Industrial Relations Act. The terms of the Act (like s 88F of the Industrial Arbitration Act 1994) were "intractable" in terms of their "width and generality", as found by Barwick CJ in Stevenson v Barham (1977) 136 CLR 192-200,201).

166 The applicant's circumstances, on his position becoming redundant, were also governed by a policy document entitled "Managing displaced employees". While the emphasis of that document was on re-deployment, voluntary redundancy was available where redeployment was not practicable. That position would be expected to be reached when the parties agreed that redeployment was not likely to be liable "in a reasonable period of time". What was "a reasonable period of time" had to accord with a reading of the policy which recognised both the right of the Department to re-organise and re-deploy its resources and the rights of employees to have their views and individual developmental needs recognised (Gala v State Bank of New South Wales (1998) 84 IR 216). It appeared that what constituted a "reasonable period of time" varied from department to department. In itself this was unfair.

167 The primary submission for the applicant was that, in August 1997, when the job at Windsor had been mutually decided to be unsuitable, given that Mr Banas' position had been abolished in December 1996 then a reasonable period, by any sensible measure, had passed. The discussion of the position at Windsor came after a period of meaningless and demeaning activity of a type which could not be seen to fulfil any conception of reciprocity in the employment relationship between the Department and the employee who was validly concerned at the maintenance of his skills and professional standing.

168 The policy document itself introduced concepts of fairness when that document emphasised the importance of decisions taken during restructure being balanced and fair for customers, public employees and the community as a whole. It was submitted that this statement was akin to the notion of an implied term of trust and confidence which is part of every employment contract (Marlik v Bank of Credit and Commerce International SA (In Liq) [1998] AC 20; Burazin v Blacktown City Guardian Pty Ltd (1996) 142 ALR 144). In Marlik, Lord Nicholls (at 38) stated that there was an obligation to take care: Not to damage … employees' future employment prospects by harsh and oppressive behaviour or by any other form of conduct which is unacceptable today as falling below the standard set by the implied trust and confidence term. This was particularly relevant in the present case because of Mr Banas' concern that his skills were devalued after a prolonged period of unproductive and demeaning inactivity interspersed with extreme frustration and, what seemed to him at least, attempts to sabotage his efforts to achieve a satisfactory result after being made redundant.

169 There was nothing in ss 50, 51 or 53 of the Public Sector Management Act which permitted a department head to take action which was not justiciable. The language of those sections was couched in general terms which did not exclude the assessment of the results of any consequent action by the standard of fairness called into play by the terms of the policy itself as promulgated by the Public Employment Office. Section 55 of the Public Sector Management Act had no operation because the applicant was eventually made redundant and was therefore "not dispensed with" within the terms of s 55 (see Clark & Doherty v State of New South Wales [2002] IRComm 274 per Peterson J at paragraph [46]).

170 In relation to the facts, it was submitted that, on 13 February 1997, Mr Batty the Acting Director of Personnel Services for the Department had committed the Department to finding Mr Banas "suitable alternative employment within a reasonable time". By 13 August 1997, a draft letter from Mr Peters as Acting Director of Personnel Services expressed the view that the position of Finance and Administrative Manager, Security Investigations at the John Moroney Correctional Centre at Windsor was unsuitable for Mr Banas.

171 While there was no maximum period for redeployment, a period of six months had been previously accepted, after which voluntary redundancy should be offered or at least considered. Mr Batty was the officer from the Department who accepted responsibility for interpreting the policy and he accepted that while "six months was not holy writ", it was a "rule of thumb". When the Department finally discovered Mr Banas at the Norma Parker Centre at Parramatta, nine months had elapsed since his position had been made redundant. Mr Banas had been at the Norma Parker Centre since April 1997.

172 The draft letter expressing the view that the Windsor position was unsuitable for Mr Banas appeared to have been the work of Ms Tarasow who worked with Mr Peters and had attended a meeting at the Norma Parker Centre at Parramatta. It was submitted that the letter was nevertheless properly drafted at the direction of Mr Peters for the consideration of relevant officers of the Workforce Management Centre, but Mr Peters, in his evidence, was not helpful in establishing the origins of the document. Ms Tarasow was not called to give evidence. In the circumstances, the draft letter should be taken as showing that discussions between Mr Peters, the applicant and Ms Tarasow had led to a shared belief that the position at Windsor was unsuitable: the draft letter reflected this mutual conclusion.

173 The draft letter was never sent, but the conclusion was available from the handwriting in the right hand corner that the draft was countermanded most likely by Mr Donohue, who identified the hand writing as his own. Mr Dononhue directed that Mr Banas either take the position at Windsor or be declared an excess officer. The draft letter of 13 August 1997 was replaced by a letter of 18 August 1997 which set out this choice.

174 The applicant submitted that this direction was unfair within the meaning of the Act. Mr Banas had stated his preference for a voluntary redundancy package in December 1996 in his letter to Mr Woodham the Assistant Commissioner. It was accepted that the wishes of a employee could not be determinative of the policy - it was nevertheless the stated objective of the policy to achieve a "balanced and fair" decision and that pointed to a degree of reciprocity which gave the desires of the employee some significance. Mr Donohue accepted that there was a degree of reciprocity and there was nothing in the legislative scheme or in the policy which gave the relevant agencies absolute power to ignore the valid wishes of an employee.

175 After returning from leave, the applicant applied for a range of jobs on his own initiative - he was actively seeking employment in the public sector. He met various difficulties, for example, a position at the Department of Fair Trading was deemed unsuitable because the salary was at too high a grade. However, Mr Banas was entitled to priority consideration for that job. Whoever rejected him made a mistake and it seemed that the Workforce Management Centre had its own rules which were not made clear in the policy.

176 The wish of the applicant at 47 years of age to maintain continuity of his professional work history and to maintain his standing as a practising accountant was in no sense unreasonable. The letter of 18 August 1997 was sent almost nine months after the applicant's letter of December 1996 to Mr Woodham asking for voluntary redundancy. Over three and a half months had been spent in idleness at the Norma Parker Centre: a period which contributed to the deterioration in Mr Banas' health.

177 At the end of June 1997, the applicant was informed of the availability of a position as Finance and Administration Manager Grade 9/10 at the Metropolitan Reception and Remand Centre (MRRC) which was clearly suitable for him and would enable him to maintain his professional standing and expertise. He was eventually informed that he had been rejected for the position without further reference to his qualifications or suitability. A facsimile sent to the Acting Director of Personnel by Mr Banas the day after he received this information was never answered. On one reading of Mr Peters' evidence, it might appear that the person who was placed into the MRRC position was not displaced at the time that position was available, but was only "potentially displaced". It was submitted that the responsible Manager, Mr Dunthorne, had a preferred candidate for that position who was not appointed to it until 14 October 1997. Mr Banas was misled when it was suggested to him that he was a serious candidate and Mr Dunthorne never had any intention of properly assessing his worth for this position. 178 In June 1997, Mr Banas was informed by Mr Donohue of the Workforce Management Centre that he could not be given priority placement as envisaged by the policy until he was registered with the Workforce Management Centre. This did not occur until September 1997. It was said that, on one reading of the re-deployment section of the policy it was only after being declared excess (and on Mr Donohue's evidence registered with the Workforce Management Centre) that Mr Banas could be placed into a suitable position such as the one which arose at the MRRC. However, there had been no work for him since April and he was a displaced employee. It was Mr Batty's evidence, as the responsible Department representative, that as a displaced employee he could simply be put into a position by the Head of the Department.

179 Mr Banas was cross-examined on the basis that the Department representative, Mr Batty, had said that the Department would not "unreasonably force" a transfer on him yet, later, it was put to Mr Banas that Mr Batty did not give an "assurance in relation to forced redeployment". It seems that the Department's position was that it both assured Mr Banas that he would not be "unreasonably" forced into redeployment, while retaining the option of forcibly redeploying him. At most the Department was guilty of positively misleading Mr Banas. In addition it was not surprising that Mr Batty did not know about the MRRC position and the respondent led no evidence about that position. The only available conclusion is that, given that Mr Banas could be placed in that position without advertisement, the way he was managed was entirely inappropriate.

180 It appeared as a reasonable inference from the evidence that, after Mr Banas commenced at the Norma Parker Centre at Parramatta he became lost in the system. Mr Banas was not supervised and had no designated or defined responsibilities apart from some projects completed before he went on leave in March 1997. The failure between late April and September 1997 to register him with the Workforce Management Centre could be seen in that context. 181 Mr Banas was mismanaged by the Department and the responsible agencies. He was not offered a voluntary redundancy package until the end of June 1998, over 18 months after his position had been abolished. This was too long a period when measured against the policy that voluntary redundancy would be offered after a reasonable period of time investigating the option of redeployment.

182 Mr Banas then spent time in the Financial Services Branch of the Department in the Sydney CBD. His request to be provided with a temporary appointment at his grade (Grade 9/10) was rejected in breach, it was submitted, of the policy to give preference to excess employees. The Manager, Mr Bedding, accepted that he had no particular knowledge of the policy as related to displaced employees and that whatever positions at Grade 9/10 were available were reserved for training promising juniors who had substantive positions. Neither the Workforce Management Centre nor the Department saw fit to investigate the possibility of placing Mr Banas in what seems to have been an available Manager accounting position. Instead, Mr Banas was given a vague, non-established special projects role. By April 1998, Mr Banas' work had again regressed, such that his skills were deteriorating.

183 When Mr Banas was offered voluntary redundancy in June 1998, he did not take up the offer because he regarded the Department as not having honoured its commitment to deal with his claim for compensation arising from its mis-management of his position and situation over the previous 18 months. In his view, liability for compensation had been accepted by Ms Lord, the Executive Director of Human Resources for the Department. The letter containing the offer of voluntary redundancy stated that 30 June 1998 had been determined as the last day of service unless special circumstances could be demonstrated. Mr Banas regarded this stipulation as a termination on the date nominated. Ms Lord thought Mr Banas' interpretation was "extraordinary" and, although it was accepted that it may have been a mistake on Mr Banas' part nevertheless the wording of the letter requiring special circumstances to avoid the final date of service could be interpreted objectively as an intention to terminate his services. A letter from his lawyers inviting the Department to make a proposal in regard to compensation was never taken up and, in fact, the next communication from the Department withdrew the offer of voluntary redundancy.

184 The applicant treated the compensation issue as an essential part of the arrangement. The acceptance that the issue would be dealt with separately but considered by the Department's Corporate Counsel underlined the nature of the agreement that had been reached. Importantly, Mr Banas did not see the issue of compensation as being independent of his acceptance of the voluntary redundancy offer. In any event, compensation was never dealt with by the Department and no offer of compensation was ever made in spite of the Department's acceptance of the letter of 30 June 1998 which records the agreement that he would accept voluntary redundancy on the basis that compensation would be dealt with separately and he would hear about it at a later date. When the Department withdrew its offer of voluntary redundancy, Mr Banas saw it as a breach of the agreement that had been reached. It was submitted there was nothing inherently unreasonable in the applicant's interpretation of the nature and content of the agreement reached. Mr Banas' sense of grievance was exacerbated by the fact that the Department made no response on the issue of compensation. He was never informed as to the advice of Corporate counsel.

185 In early September 1988, the Department withdrew its offer of voluntary redundancy and within nine days directed Mr Banas to take up a position as the Business Manager Grade 9/10, at the Corrective Services Academy, and within a further three weeks or so withdrew the offer of voluntary redundancy on the basis that Mr Banas would be lodging a workers compensation claim. Mr Batty accepted that the displaced employees' policy operated to suspend voluntary redundancy when a person was on workers compensation until the compensation issue could be finalised: Mr Banas was never on workers compensation at the relevant times. There was no basis for withdrawing the new offer of voluntary redundancy. The June 1998 offer of voluntary redundancy had been withdrawn because Mr Banas had not proceeded on "job search leave" - but he was never informed that taking such leave was a condition of the offer of voluntary redundancy.

186 Attention was drawn to the April 1999 report of Dr Gapper, New South Wales Government Medical Officer who examined Mr Banas and wrote a report which it was submitted concluded that Mr Banas had been damaged and that it was an open interpretation that the damage had been caused by his "previous work environment".

187 Dr Napper diagnosed Mr Banas as suffering from a work related adjustment disorder within the meaning of DSM - IV. That disorder was grounded in the frustration and difficulties he had experienced after his job was abolished in December 1996 and was based on information gathered over 20 consultations. Dr Napper's medical evidence was the only evidence before the Commission when the respondent chose not to call their expert Dr Lucire. Dr Napper's evidence was cogent and there was no reason why the Commission would not accept it. If accepted there was no reason why the Commission would not award a monetary payment (Stoneham v Speaker of the Legislative Assembly (2000) 97 IR 325 per Hungerford J at paragraphs [28-32).

188 At the time of Dr Napper's report, Mr Banas had been without an income since December 1998, when leave and sick leave entitlements had become exhausted. It was submitted that the evidence suggested that the Department had simply ignored Mr Banas until he commenced legal proceedings in August 1999 and that he was ignored in spite of letters sent to both Ms Lord and the Commissioner.

189 A significant aspect of the respondent's case was Mr Banas' failure to take the position which was available at the Corrective Services Academy. Mr Banas accepted that, while the position may have been properly graded, it contained a range of tasks and responsibilities for which he was not qualified. The relevant job description stated a primary responsibility to be the management and co-ordination of the business function and support services of the Corrective Services Academy. It was submitted on behalf of the applicant that the position was primarily an operational service delivery function, which was significantly removed from the financial analysis reporting function which was the applicant's primary focus in his previous position. The Academy position required as essential tertiary qualifications in administrative/human resources disciplines. The range of knowledge, skills and experience categories referred to having at least 12 years' experience in a wide range of activities including finance/personnel management/supervision, administration, building works, customer services in the public sector and a broad knowledge of catering, cleaning and overnight accommodation management practices.

190 Mr Batty accepted that the job had "more administrative character" than Mr Banas' previous position. In his former region, there was a separate business manager position and Mr Batty accepted that the Business Manager in the Academy position would be ultimately responsible for meeting standards in areas such as catering and accommodation.

191 It was submitted that there were serious omissions in the respondent's case. Mr Farrelly, Mr Banas' previous superior, was not called although intimately familiar with Mr Banas' capacities and the requirements of the position at the Academy. There was no explanation as to why Mr Farrelly did not give evidence and there was clearly doubt and ambiguity about the difference between the two positions. A clear resolution of the problem lay within the province of the respondent: witnesses such as Mr Farrelly and, possibly, the previous holder of the position at the Academy were under the control of the respondent. Thus, any doubt or ambiguity should be resolved in favour of the applicant's contention that the positions had substantial differences (Jones v Dunkel (1959) 101 CLR 298). The availability of this inference was stronger where the potential witness is in the employment of the party who does not call them (Earle v Castlemaine District Community [1974] VR 722).

192 Other aspects of the case which invited the same inference were the failure to call Mr Dunthorne in regard to the MRRC position, the failure to call Ms Tarasow in regard to the drafting of correspondence concerning the position at the John Moroney Correctional Centre at Windsor (which suggested there was an agreement or mutual understanding that the position was unsuitable for Mr Banas) and the failure to call Ms Sultana, the Case Officer who took over Mr Banas' file from Mr Donohue. The suitability of the Academy position for Mr Banas was actually called into question by the respondent's own witness Mr Crossley who had been called to support the view that this was a position suitable for the applicant. Having considered the detail of the job description, Mr Crossley was unable to maintain that position and Mr Batty seemed to accept, at least at one point, that taking this position would result in a diminution of Mr Banas' financial and related analytical skills.

193 Mr Banas was offered a position with Treasury on a three month trial basis and on the basis that he undertake an English course. He regarded the position as a worthy position but he rejected both the trial nature of the position and the condition of the English course being imposed. It was submitted that his rejection of the position on this basis has to be seen against the background of what had become to him a very frustrating and damaging situation. Under the policy, he was entitled to appointment to a suitable position: he had already performed probationary work and the position was one which had become available "abruptly". In addition, it seemed that, on the one hand, the Department had tried to place him in a job at the Academy which manifestly required a high order of communication and on the other hand, he was being told, in regard to the Treasury position, that his communication skills were inadequate. Mr Banas was entitled to be sceptical about this Treasury job offer against the background of his experiences in trying to find alternative employment.

194 The direction by Ms Lord that Mr Banas take up the position at the Academy was said to be the result of her desire to "finish" the issue about his redeployment. This direction, however, looks very much like an attempt to punish him for not bending to the will of the Department, or presenting him with a position which he might find so unacceptable that he would choose resignation. Ultimately, Ms Lord agreed with the opinion of other officers of the service that Mr Banas was not handled well.

SUBMISSIONS FOR THE RESPONDENT 195 The respondent pointed to the legislative and policy framework which governed the employment of the applicant. The applicant was employed under the provisions of the Public Sector Management Act 1988 (the PSM Act). At the time his position was abolished, together with other officers affected by the re-organisation, the position was covered by the PSM Act and the respondent's policy document namely "Managing Displaced Employees".

196 It was submitted that the relevant statutory provisions were ss 50, 51, 52, 53 and 55 of the PSM Act. Section 50 permitted the department head to transfer within a department or between departments at existing salary provided the officer possessed the qualifications required. Section 51 dealt with excessive staff and where the appropriate department head was satisfied that there were employees in excess of that necessary for the effective efficient and economical management of departmental functions and activities. The department head was to take such steps as were practicable to secure the transfer of excess persons to vacant positions in other departments at their existing salaries. If they could not be so placed the Governor may, on the recommendation of the appropriate department head, made with the approval of the Public Employment Office, dispense with the person's services. Section 52 dealt with excessive salaries and focussed on the work performed by an officer. Where an officer could not be assigned sufficient work of the class appropriate to that officer's salary, the appropriate department head was to take such steps as were practicable to secure the officer's transfer to a vacant position in any other department at the officer's existing salary. If no such transfer could take place the department head with the approval of the Public Employment Office was to reduce the officer's salary to the maximum determined by the department to be appropriate to the work performed by the officer and was to take such steps as were practicable to secure the officer's transfer to a vacant position in the department or any other department at that salary. Section 53 dealt with an officer refusing a transfer under ss 50, 51 and 52. The Governor, on the recommendation of the appropriate department head made with the approval of the Public Employment Office, could dismiss the officer from the Public Service but only if the department head had certified that the officer had no valid reason for refusing. If it was determined by the department head that there was a valid reason to refuse the transfer the department head could allow the officer to decline the transfer without prejudice to any rights that the officer would have had to any future promotion or appointment had the transfer not been declined. Section 55 provided that an officer, except as provided by the PSM Act or any other Act, was not entitled to compensation as a result of the officer's services being dispensed with or the officer's salary being reduced.

197 It was said that Parliament had provided a comprehensive scheme for the management of officers of the public service in New South Wales who had been displaced from their former positions as a result of re-organisation. The Managing Displaced Employees policy complemented rather than supplanted the legislative provisions. The provisions of the policy enabling an offer of redundancy payments to be made where redeployment at the officer's substantive salary was not possible or impractical was "ultimately very much at the election of the employer" and was not an entitlement. '

198 It was noted that the policy for displaced persons stated that there would be no forced redundancies, and every effort would be made to redeploy displaced persons. Redeployment was stated to be the principal means of managing displaced employees. Voluntary redundancies would be considered where the parties agreed that redeployment was not likely to be viable in a reasonable period of time. It was also pointed out that the parties referred to in the document were the relevant Minister, the department, the Workforce Management Centre, the relevant union and individual employees were not parties to the agreement.

199 The policy contemplated that excess employees may be placed in a job at a lower salary but would be entitled to salary maintenance for a period of 12 months or for such other period approved by the Public Employment Office. Such employees could also be placed in a position with a slight differential in salary notwithstanding that they would receive a greater salary than their former position (up to 5 per cent or one grade). The policy itself stated that it was to be read in conformity, in particular with ss 50 - 53 of the PSM Act.

200 It was then submitted as follows: Exercise by the relevant Department Head of the statutory powers to manage staff displaced by organisational change may give rise to a Public law remedy but they are not capable of being challenged in proceedings brought pursuant to s 106 of the Industrial Relations Act 1996. It was then said that, in order to succeed in the present claim, the applicant had to establish that the contract was relevantly unfair. It was not disputed that the applicant's conditions of employment were in part regulated by contract. However, the relationship was in large measure subject to the provisions of the PSM Act. The contract had to be consistent with the statutory provisions affecting the relationship. To the extent that the PSM Act governed the relationship, it was idle to enquire whether there was a contract which embodied its provisions: the statute itself controlled the terms of service.

201 While it was emphasised that ss 50, 51, 52, 53 and 55 laid down a specific statutory scheme which existed independently of any contractual provision express or implied, the displaced employees' policy, for the most part, mirrored these provisions of the PSM Act. It was also stated that, while the policy would be part of the arrangement under which work was performed in an industry, insofar as the relief sought to set aside the arrangement, it could not be granted because to do so would be to directly, and not merely indirectly, conflict with the PSM Act. If there was a conflict between these provisions of the PSM Act and ss 105 and 106 of the Industrial Relations Act then, to the extent that there is a conflict, the generalia specialibus maxim of construction would apply so that ss 105 and 106 would be deemed not to apply. It was submitted that it would be "simply inconceivable that a provision or provisions providing a remedy for unfair contract were meant as a matter of construction to apply to statutory provisions".

202 The respondent did not assert that the provisions of the PSM Act were not justiciable but asserted that the exercise of the statutory power was not challengeable in proceedings commenced under s 106 of the Industrial Relations Act. It was accepted that the legislation binds the Crown but it was not accepted that the Industrial Relations Act applied to a case where the statutory provisions govern in such a direct way the terms of employment. It was stated that the decisions in Grant and Lynn were directly in point. Marks J said in Lynn: Accordingly, to make an order of the kind sought by the applicant would intrude into the statutory framework which governs the applicant's employment. In effect, the Court is being asked to exercise jurisdiction with respect to the statutory matrix rather than with respect to the contract of employment. This is so even if one categorises the totality of the relationship as coming within the rubric 'arrangement'.

203 The respondent then submitted that, having regard to the manner in which the case was pleaded in the further amended summons and on any view of the evidence adduced on behalf of the applicant, in reality, the applicant was attempting to run what was in substance a personal injuries action dressed up as an unfair contract claim. Paragraph 3 of the amended summons sought an order that the contract or arrangement be varied so that the respondent pay the applicant compensation for loss of income calculated as: the equivalent of the applicant's salary for the period between 4/11/98 and 01/11/99; or, in the alternative, an amount of money the Commission in Court Session considered just in all the circumstances of the case. It was submitted that, on the evidence adduced, the applicant's loss of income during this period arose as the result of going on sick leave by reason of psychological illness and exhausting all his entitlements. Approached in this way, the relief sought in this paragraph was in reality a claim for past economic loss as a result of the applicant's claimed work induced psychological illness. The applicant also sought an order for the payment of $40,000 to compensate him for the depressive illness suffered by him and an order that the respondent pay to the applicant compensation for the economic loss incurred as a result of his diminished earning capacity. These orders were identical to what might be sought in a personal injuries claim.

204 The respondent accepted that under s 106(2) the Court may find the contract is unfair at the time it was entered into or that it subsequently became an unfair contract because of the conduct of the parties, any variation of the contract or any other reason. Whilst the conduct of the parties could be taken into account in deciding whether a contract was unfair, however, it did not permit, in the context of the Act as a whole, an order for the payment of money for personal injury: such a payment could not be described as "in connection with" the contract. This was so even accepting that the words "in connection with" were words of wide import. Nevertheless, the meaning to be attributed to them depended on their context and the purpose of the statute in which they appeared (Burswood Mangement Ltd v Attorney-General (Cth) (1990) 23 FCR 144; 146).

205 The respondent then drew attention to well known passages from Project BlueSky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, dealing with the need for conflicting statutory provisions to be reconciled as far as possible. It was then submitted that, while sub-sections (3) and (5) of s 106 were not inconsistent, it was clear that sub-section 3 was the leading provision and sub-section 5 was the subordinate provision: thus the Court could only make an order for the payment of money "in connection with" any contract that it has declared wholly or partly void or varied. Any such payment had to be related to the terms of the contract and not to the law of tort which arose quite independently of the contract. Construing the section in the context of the enactment in which it appears, it could not be said that the purpose of the legislature was to create a new forum in which claims for damages in personal injuries could be brought. The right of an employee to claim damages from an employer in respect of personal injury was a common law right (Grljak v Trivan Pty Ltd (in Liq) (1994) 35 NSWLR 82; 85C). Testing the operation for s 106, as proposed by the applicant, by its consequences meant that an unsuccessful party would not have the same appeal rights as those which existed in relation to personal injuries claims decided by Local Courts, the District Court and the Supreme Court.

206 It was submitted that it was significant that the applicant had made a claim under the provisions of the Workers Compensation Act 1987. That claim was pursued to the point where a certificate was issued which permitted him to commence proceedings in the Compensation Court. A claim in that jurisdiction or a claim in tort at common law was the appropriate means to pursue this remedy. A claim for damages made by an employee against their employer in respect of personal injury is only available in the modified form provided by Part V of the Workers Compensation Act. The definition of damages under s 149 was sufficiently broad to encompass the claim in the present proceedings. Further, s 151E(3) made it clear that Division 3 of Part V of that Act would apply to the calculation of damages in this case. That provision reads: This Division applies to an award of damages in respect of an injury caused by the negligence or other tort of the worker's employer even though the damages are recovered in an action for breach of contract or any other action.

It was then submitted that, if the Court determined that it had jurisdiction, then it must apply Part V of the Workers Compensation Act with respect to any damages that are to be awarded.

207 It was also submitted that it was relevant to have regard to s 11A(1) of the Workers Compensation Act: No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or a dismissal of workers or provision of employment benefits.

208 Whether or not the Court has jurisdiction under s 106, the Court should in the exercise of its discretion decline to award any amount referrable to loss as a result of personal injury. Such claims ought to be heard in the jurisdiction where those matters are heard on a regular basis and which have appropriate rights of appeal.

209 It was submitted that s 106 was directed to providing a remedy for matters in relation to which the common law and other statute law did not and does not provide a remedy. To the extent that Parliament had considered it appropriate to modify the common law it had done so by statute, namely, the Workers Compensation Act 1987. Since 1987, there had been significant changes with respect to the entitlement of employees to sue their employers with respect to personal injury sustained in the course of their employment. The result was that common law rights had been modified by statute. In relation to workplace injuries not covered by the common law, claims arising from such injuries are dealt with by a specialist court, namely, the Compensation Court. It would be odd if that specialist court had no jurisdiction to dealt with common law claims for personal injuries but the Commission in Court Session did have such jurisdiction.

210 It was noted that the applicant relied upon the decision in King v State Bank of New South Wales (2000) NSWIRComm 229 in support of damages for psychological distress arising from an unfair contract being within the jurisdiction of the Court under s 106. That case was under appeal. The respondent contended that the present case was a personal injury claim masquerading as a s 106 claim: in King the Court considered the discretionary jurisdiction to award damages for personal injury within the context of broader claims made pursuant to s 106. Thus the claim for compensation for psychological stress was a minor part of a much larger claim. The extent to which the Court should entertain personal injury claims under s 106 had also been considered by Peterson J in interlocutory proceedings in Clarke and Doherty v State of New South Wales. There the claim was sought to be struck out because the respondent categorised it as one for the payment of damages for personal injury. Peterson J stated that if, that characterisation was correct, he would incline to the conclusion that the Commission lacks jurisdiction to deal with the matter or, alternatively, should decline to exercise jurisdiction in relation to such a claim which would be heard in a more appropriate jurisdiction.

211 The respondent's submissions then turned to the facts of the case. The applicant had been one of a number of officers who were displaced by major re-organisation within the Department in 1996. The applicant had held his position as Finance and Administration Manager, Clerk Grade 9/10 in the Central region since November 1992. All displaced employees, including the applicant, were relocated to the Norma Parker Correction Centre and the applicant was given project work and became subject to the displaced employees, policy. On 4 December 1996, the applicant, by letter, sought voluntary redundancy but the Department at that stage was not offering voluntary redundancy nor had it invited expressions of interest. The applicant said that at a meeting which was attended by Ms Hunter, she told him that the Department was looking at redeployment but that voluntary redundancy would be considered on a individual basis and those who were interested should make a written submission. Ms Hunter denied that she spoke about voluntary redundancy as alleged by the applicant: in her recollection, when Mr Banas raised the issue of redundancy, she told him that redundancy was not currently available and that the Department was focusing upon redeployment. It was submitted that the evidence of Ms Hunter should be accepted and preferred to that of the applicant.

212 The applicant also said that, in a telephone conversation with Mr Batty on or about 13 February 1997, Mr Batty (then the Acting Director of Personnel Services) told him that his request for voluntary redundancy had been refused and that the Department would never give him voluntary redundancy. Mr Batty denied that he had ever told the applicant that he would never receive voluntary redundancy. In his view, the applicant was a valued employee and the Department would find a position for him and, further, that the Department was not at present offering voluntary redundancy. Again, it was submitted that the evidence of Mr Barry should be preferred to that of the applicant.

213 The applicant then sought an interview with Mr Woodham (the Assistant Commissioner) and put forward his case for voluntary redundancy. Again there are some discrepancies as to what Mr Woodham and Mr Batty were alleged to have undertaken to recommend to the Commissioner on the applicant's behalf. The respondent again submitted that any conflict in the evidence would be resolved by preferring the evidence of Mr Batty to that of the applicant. The following day, the applicant received a facsimile from Mr Batty informing him that the voluntary redundancy would not be offered at that time: he subsequently received a letter from the Commissioner to the same effect.

214 Until the end of March 1997, the applicant, whilst at the Norma Parker Centre, was provided with project work on which he was gainfully employed: there was no evidence that it was neither within his area of experience nor competence. The applicant then went on leave to Poland for a month and stated that on his return found himself without work to perform. No submission was made on that matter by the respondent except to note that there was no evidence as to any action taken by anyone, including the applicant, to bring that matter to the attention of the respondent until the applicant referred to the problem in a letter addressed to Mr Batty in June 1997. He remained at the Norma Parker Centre until transferred to the Financial Services branch at the Department's head office in Sydney in mid-August 1997, where he remained until he received notification of a transfer to the position of Business Manager, Corrective Service Academy with effect from 18 September 1998. In this period, the applicant alleges that the respondent, by providing him with project work and not appointing him to act in the Accounting Manger's position did not provide him with meaningful work and thus did not comply with the displaced employees' policy. The failure to provide experience in temporarily vacant positions was not shown to be in breach of the policy. The position was filled on a relieving basis in any event. It was submitted that it was not unreasonable to leave the other person in the position. Further, the work given to the applicant at this time was work appropriate to his experience and competence.

215 From the time the applicant was displaced in December 1996 until he ceased work with the Department (a period of three years) he was offered two positions within the Department and a trial place outside the Department. The respondent submitted that each of the positions was appropriate having regard to the applicant's skills and experience and they were in line with the policy. The aim of the policy was to make available gainful employment to displaced employees having regard to their qualifications and experience "in a broad sense".

216 It was noted that the applicant had focused upon the need to maintain his standing as a practising accountant. However, the job description of the position he occupied was not that of a professional accountant. Whilst accounting qualifications were "highly regarded", they were not an essential requirement for the position. Moreover, it was submitted that whilst financial matters and the skills required to deal with such matters (as opposed to more general administrative tasks) were emphasised, the position also required the occupant to have interpersonal skills including the ability to communicate with and interact with other members of staff and general and administrative skills. The applicant was an administrative and clerical officer: he was not occupying a professional position.

217 The policy for displaced persons contemplated that work different to that previously performed might be made available by way of transfer at new locations and, if so, the employee would receive necessary support including staff development to perform in the new role. Also, a displaced employee within the Sydney metropolitan area may be required to transfer to suitable available positions elsewhere in the metropolitan area. It was said that these provisions were consistent with ss 50 - 53 of the PSM Act. In those circumstances, it was submitted that the applicant could not reasonably expect to be entitled to be redeployed in a position that was identical to the one which had been abolished.

218 The position of Business Manager at the Corrective Services Academy was first discussed with the applicant at the meeting with the Assistant Commissioner in February 1997. At that meeting, the applicant raised a number of objections to being transferred to the position including a perceived loss of status and that the skill mix was below the level of his previous position. The applicant seemed to be interested only in a strict financial accounting position whereas the Department was looking at his suitability in a range of other positions of an equivalent salary and grading. In cross-examination, the applicant conceded that the position was not below the level of his previous position (Grade 9/10) but that he wanted to pursue a career in accounting/financial management. On 5 March 1997, Mr Banas met Mr Rave who was the Director of the Academy to discuss the position of Business Manager at that facility. Mr Banas' notes indicate that Mr Rave told him that, in his opinion, although he had no relevant experience Mr Banas would satisfactorily perform in the position. Apparently Mr Banas told Mr Rave that the position was not in line with his qualifications, experience or development needs and that he would never have considered applying for this type of position as it was not in his area of expertise or interest.

219 The respondent noted the terms of Mr Rave's memorandum of 14 March 1997 which contained the following passage: Mr Banas is well qualified for the position. However his expertise and experience is in financial management and although the position has some financial management responsibilities it involves management of all support functions at the Academy. These include administrative support, accommodation, ground and building maintenance, store and vehicle. Mr Banas' experience does not extend to these other functions of the position although I am confident that he is capable of performing well if appointed to the position. [He] has a negative attitude to the position at the Academy and does not want to be allocated to it. He regards it as a demotion when comparing the financial responsibilities of his previous position with those of this position. He has focused on the financial management aspects of the position rather than the diverse range of responsibilities which it involves. Given this attitude and the importance of the position to the effective operation of the Academy it is my recommendation that he not be appointed to the position at this time. The respondent relied upon this as evidence of the reasonableness of the request to ask Mr Banas to take up this position and to confirm his general suitability for the position. 220 Mr Banas was also given the opportunity to take up the position of Finance and Administrative Manager, Security and Investigations Branch at Windsor, which was a position to be created and thought to be likely to be graded at the same grade as his previous position, Grade 9/10. This position was canvassed with him at the February 1997 meeting which he attended with the Assistant Commissioner and Mr Batty. It was also discussed with him again in June 1997 by Mr Peters. In July 1997, Mr Peters met the applicant to discuss his redeloyment and the Windsor position was again suggested as being suitable for him. Mr Banas, in a letter, stated that he was not prepared to consider the Windsor position until other outstanding issues raised in an earlier letter had been addressed.

221 Mr Donohue had met with Mr Banas and Mr Peters on 30 July 1997 and sought to clarify the applicant's employment status. The respondent accepted that the Department had not been able to certify that Mr Banas could not be transferred to other alternative employment within the Agency. During the meeting, Mr Donohue recalled saying to Mr Banas that he had been told that Mr Banas had refused to accept placement in a suitable position at his existing grade. Mr Donohue's recollection was that Mr Banas replied to the effect that the positions offered had not been suitable, would involve him in extra travel, were not near his home and were not really Grade 9/10 positions.

222 In August 1997, the applicant replied to Mr Peters setting out the reasons for rejecting the Windsor position. In that document, location and transport figured prominently although personal development was also raised as an issue. The respondent submitted that it was not clear how personal development was relevant to whether or not the position was to be taken up in view of the position being identical to the position formerly occupied by him. It was also noted that, in Mr Banas' oral evidence, he stated that when he was being asked to give consideration to the appointment it had not even been created. He also relied upon a draft letter prepared by Ms Tarasow which contained a statement that given his recent comments it was not considered that the position was a suitable placement.

223 The respondent referred to the chronology of extensive exchanges between the applicant and others to cast doubt on the applicant's submission that Mr Peters and others shared the belief with the applicant that the job at Windsor was unsuitable for him. It was suggested that it was idle to speculate as to the reasons for the draft being prepared in that form and Mr Peters did not share that belief and would not have signed off on a letter to that effect. Ultimately, it is the letter that was sent that was relevant rather than the draft.

224 It was also submitted that it was unreasonable for the applicant not to accept the Windsor position. There is no doubt that it would have been created, although under contemplation when offered, if it had been accepted by the applicant. The respondent rejected the suggestion that it was unfair to the applicant at that time, to provide him with a choice of either taking up the position at Windsor or being declared excess and being assigned work in the Finance Branch. That submission ignored the interests of the employer. The applicant's interest had been considered. The alternative was, in fact, to leave the applicant at the Norma Parker Centre with no meaningful work to perform. Moreover, the respondent did not appoint him to the Windsor position against his wishes.

225 A priority placement interview was arranged by the Workforce Management Centre for the applicant to be interviewed for the position of Finance Analyst with the Treasury. The applicant was interviewed for the position and was offered the position initially on a three month trial basis to give him an opportunity to demonstrate his ability and capacity to undertake the duties of the position. His referees included Mr Crossley and Mr Benning, who spoke highly of him. In a letter to Mr Peters in late November 1997 the applicant expressed concern about the qualifications attached to the offer, namely, successfully completing a three month trial period and addressing the Treasury's concern as to his English language communication skills. He also raised the fact that acceptance of the position would involve travelling costs.

226 The applicant ultimately declined the offer of the Treasury position. In his letter of December 1997 to Mr Peters the applicant said that redeployment in the public sector was not his choice and he did not agree to any trial probationary arrangement. He had hardships over the last 12 months, had occupied a permanent position and wished to be placed in a permanent position. He calculated the additional travelling costs to effectively reduce his income by 4 per cent. The applicant, however, reiterated his preparedness to accept a suitable permanent appointment in the Sydney CBD at Grade 11 or above. The respondent pointed out that Mr Crossley had stated that, from his own experience as an officer in Treasury, it was not unusual to be offered an appointment subject to an initial trial period. In fact, the displaced employees policy provided for just that possibility. In all the circumstances the applicant's decision to reject a trial placement was unreasonable and reflected an attitude taken from the outset that he would reject any placement that would involve him in more travel time when compared with the time it took him to travel to his former place of employment. If he was required to travel further than he had normally travelled, he required an effective promotion to a higher grade. This attitude was reflected much earlier in his rejection of the Treasury position.

227 In relation to the offer of voluntary redundancy, the respondent noted that the applicant was first offered voluntary redundancy in June 1998. This offer was not taken up because of the applicant's view that the respondent had not honoured a commitment to give serious consideration to a claim for compensation. That view, it was submitted, was not a reasonable one nor it was it reasonably open. On all of the evidence and, in particular, the correspondence, the issue of compensation was clearly to be treated as a separate matter and was not to be resolved before the applicant left the Service. The applicant was to leave the service on Job Search Leave in August 1987 but refused to do so until his claim for additional compensation was addressed. His actions in this regard were clearly unreasonable. It was submitted that the respondent ultimately rejected his claim and was entitled to do so. The applicant's solicitor requested reinstatement of the offer of voluntary redundancy and when this was acceded to the offer was again frustrated by the applicant bringing a workers compensation claim. While he was undoubtedly entitled to bring such a claim and when it was denied he was entitled to have it determined by the Compensation Court. In fact the applicant proceeded along that path and did not ultimately commence proceedings in the Compensation Court. It was entirely proper for the respondent to wish to have any such proceedings concluded (if they were to be proceeded with) before proceeding with the redundancy.

228 The applicant had not made out his claim for pain, suffering or economic loss as a result of his alleged depressive condition. The history given to Dr Napper on which the doctor's opinion was based was not supported by any evidence by the applicant. He had not given any evidence in chief as to how that condition affected him during any relevant period and there was no evidence which would enable any quantification to be made in relation to his claim for economic loss, future or past. The facts which were assumed to be true for the purpose of the expert's report were not independent evidence of the facts themselves. Those facts had to be independently proved.

DELIBERATION 229 The applicant's further amended summons claimed the following relief by way of orders arising out the alleged unfair contract: (a) the equivalent of the applicant's salary for the period from 4 November 1998 to 1 November 1999; (b) in the alternative to (a) an amount of money the Commission considers just in all the circumstances of the case; (c) an amount of $40,000 to compensate for the depressive illness suffered by the applicant; (d) in the alternative to (c), an amount of money the Commission considers just and reasonable to compensate for the depressive illness suffered by him; (e) an order that the respondent pay to the applicant a further 3 months pay in lieu of notice; (f) an order that the respondent pay to the applicant compensation for the economic loss incurred by him as a result of his diminished earning capacity, calculated as equivalent of five years worth of loss of earnings due to this current employment attracting less remuneration; (g) in the alternative to (d) and (e), an order for an amount of money the Commission considers appropriate. In final submissions, counsel for the applicant abandoned the claim in sub-paragraph (3) for a further three months' pay in lieu of notice.

230 To the extent that at least part of the claim appeared to seek further compensation related to redundancy, that claim could not be made out on the evidence. Nothing was presented on behalf of the applicant to support a finding that the monetary elements and other parts of the redundancy package, when paid ultimately to the applicant, were unfair - the applicant was given precisely what was available under the Displaced Persons Policy to all displaced public servants. The difficulty facing the applicant in this regard appeared to be recognised by the withdrawal of the claim for payment of a further 3 months' notice.

231 Having regard to the concentration of the applicant's case on the conduct of the employer' it appears appropriate that consideration firstly be given to whether or not there was unfairness in the contract, and identifying such unfairness and its consequences before considering a number of the jurisdictional and discretionary issues raised by the respondent. 232 It is appropriate to commence with a consideration of the displacement policy. The respondent pointed out that the policy supplemented the legislative provisions dealing with excess employees but could not operate so as to supplant the statutory provisions. The Displaced Persons' Policy memorandum is a combination of introductory letters and directives covering approximately 26 pages in total. The document is repetitive and set out in a way which tends to confuse rather than to elucidate the subject. It was suggested in evidence that the document was primarily for managers but it is the result of consultation with public sector unions under the auspices of the Labor Council and is therefore a document which will be referred to by employees wishing to inform themselves about the provisions which will apply to them when they become displaced.

233 A summary of the Displaced Persons Policy appears as an appendix to this judgment. The main points appear to be as follows:

· a key feature was said to be the details of the services to be provided to all displaced employees - services including counselling and training; · there would be no forced redundancies and "every effort" would be made to redeploy those who were displaced; · voluntary redundancy may be offered where redeployment is considered not viable "in a reasonable period of time"; · voluntary redundancy would be contemplated where the organisation, the WMC and relevant unions consider it impractical to retain the displaced person for redeployment and that person's knowledge and skills were not in demand by public organisations; · voluntary redundancy would apply where the parties agree that redeployment was not likely to be viable in a "reasonable period time"; · for voluntary redundancy to be available, the WMC was to advise on potential redeployment in the public sector in a reasonable period of time; · displaced persons were to have access to professional vocational and personal counselling; · in applying the policy, there was to be a balance and fairness to the customers, public employees and the community; · redeployment was to be made to a "suitable position/job" elsewhere in the public sector wherever suitable and sufficient vacancies existed "in a reasonable period of time"; (emphasis added) · displaced employees were to be kept fully informed of redeployment opportunities; · outcomes under the policy were to be fair and management of people involved was to be sensitive to the pressure of change on public employees and their families; · displaced employees could be placed in any suitable vacancy without advertising; · displaced employees who were excess were to be considered before other applicants for advertised vacancies if they met the essential requirements for the position or could perform the duties adequately and in a reasonable period of time given access to appropriate training; · displaced employees who were not yet declared excess to the needs of the Department, pending consideration of suitable placements within the Department, may be given priority consideration for a vacancy where no excess employee has sought redeployment in the position. · it was the responsibility of the employee to participate fully in the redeployment process; · all chief executives and the WMC were to co-operate in redeploying employees as quickly as possible within and across departments; · there was no prescribed maximum period for redeployment although it was recognised that this had previously been set at 6 months - employees would need to consider their circumstances in the context of the availability of work and the availability of voluntary redundancy; · displaced employees were to be given access to stress management counselling; · individuals were responsible for undertaking a pro-active job search; · the WMC was to facilitate redeployment between the departments; · employees were not to be relocated if they had a valid reason for refusing a transfer. (emphasis added)

234 Neither the policy nor the statutory provisions identify when an officer is to be declared excess to the needs of the department. The statutory provisions appear to contemplate that the first step is to look for vacancies within the employing department and, if none are available then the person is declared excess and may be placed in other departments. The policy makes it clear that the search for work outside the employing department is a step that can be taken early in the process through the WMC and while consideration is still being given to positions within the department. It is of some interest that, in their evidence, a number of the senior officers who were involved in applying this policy were not aware of all the provisions and services available to displaced employees, and there was a perception that registration with the WMC could not take place until after the department had exhausted its search internally for a suitable position. (The policy, in terms does not deal with registration).

235 It became clear from the evidence that the policy itself was the subject of a number of unwritten practices which had an important effect upon the way in which the policy operated yet these practices appeared to be known to only a small number of people. It was accepted by Ms Lord and Mr Donohue that there was a fair degree of flexibility in how the guidelines were applied. The Department of Corrective Services apparently was of the view that there should be no registration with the WMC or use of its facilities until after an employee had been made excess - a position not required by the policy guidelines. There was flexibility in how departments approached what was "a reasonable time" for searching for suitable positions both internally and externally and before voluntary redundancy would be considered. Some departments were said to act quickly in looking for internal vacancies and then offering voluntary redundancy if positions could not be quickly identified in the public sector generally. Other departments were said to take longer and the Corrective Services Department prided itself on being able to find positions for its displaced employees. Mr Batty, nevertheless, accepted six months as a rule of thumb, and as providing a reasonable period in which to search for suitable positions for displaced employees. Redeployment under the policy was to take place "as quickly as possible".

236 The policy emphasises fairness and care in dealing with displaced employees. It makes available stress counselling and recognises that those who are displaced will be under pressure and the effect the situation will have on their families. Against these considerations is balanced the need to ensure that the skills and qualifications possessed by a displaced person are utilised either in the employing department or public sector generally where such skills and qualifications are required or are in short supply. It may be understandable, in the light of these conflicting considerations, for there to be some flexibility as to when a person should be offered voluntary redundancy having failed to be placed either within the department or in the public sector. It would be unfair for all concerned if a valued employee was made redundant and offered voluntary redundancy when it was known that within a relatively short period of time a suitable position would arise. On the other hand it is unconscionable to retain an employee in a number of ad hoc positions and allocating project work for an extensive period when no suitable employment has been found. Mr Banas was displaced and his position and region abolished in December 1996 - he finally was able to take voluntary redundancy in December 1999, three years later. There are a number of factors which require consideration before a final determination can be made as to the fairness of the Department's conduct in handling Mr Banas but, prima facie, a period of three years is not a "reasonable period of time" before voluntary redundancy is concluded (see in a different statutory context, Beaumont J in Lee v Jacka (1994) 125 ALR 459).

237 Apart from taking three years to accept Mr Banas' redundancy and the unavailability of suitable positions within the Department or the public sector, it also took until 1 September 1997, some nine months, before the Department formally declared Mr Banas excess. He was not registered with the WCM until 28 August 1997. The reasons for these delays appears to stem from the approach adopted by the Department to the displacement policy. It was clearly announced in December 1996 at the meeting attended by Mr Banas that the Department would not be offering voluntary redundancy at that time because there was confidence that everybody would be suitably placed - this was the position which the Department prided itself on being able to attain. Mr Batty stated that he had informed Mr Banas that voluntary redundancy would only be applied where a person could not be redeployed: but he also confirmed in writing that this would occur within a reasonable time. In their February 1997 meeting, he said they were evaluating MRRC positions in the next month and if Mr Banas was not placed at the MRRC or elsewhere he would be declared excess and referred to the WMC. He stated that no negotiations would be undertaken with the WMC until the positions at the MRRC were filled and all avenues for placement in the Department were considered. He gave no reason why this position was taken and why, in the circumstances of a senior administrative and clerical officer such as Mr Banas with a specialised work history, he was not considered for immediate reference to the WMC in accordance with the policy.

238 Mr Banas had in fact contacted the WMC in May 1997 but had been told he was not eligible for its services as he had not yet been registered by his Department and that they could not assist. Again this appears to be a confusion about the application of the policy. The WMC under the policy was to give early assistance once a person was displaced: the difficulty appears to arise when the declaration of being excess flows from being unable to find a position within the Department. Mr Donohue was concerned about this contact because it was not policy to register people for assistance through the WMC while there were positions available within the Department. It was obviously his information that, at the time there were positions available within the Department but which, of course, the Department knew had been rejected by Mr Banas as not being suitable. At this early stage in February 1997, Mr Batty was working under Assistant Commissioner Woodham's direction that positions within the Department should be filled first, but note, not necessarily "suitable" positions.

239 In relation to Mr Batty, a question arises as to why, given Mr Banas' specialist position and senior administrative and clerical grading, he would not be simultaneously referred to the WMC for assistance as well as being considered for internal appointment. It appears that the answer to that question lies in the evidence of Mr Batty, who accepted that Mr Banas was well respected and a valuable officer and he did not want to lose such a valued employee to another department. After meeting Mr Banas in February 1997, both Assistant Commissioner Woodham and Mr Batty spoke with the Commissioner. Mr Banas thought that they were taking to the Commissioner Mr Banas' case for voluntary redundancy which had already been supported by Mr Banas' superior officer, the Commander of the Eastern Region, Mr Farrell. Mr Farrell had formed the view that, because of the special features of Mr Banas' position although he was a valued and well respected employee, voluntary redundancy was the only viable option. Assistant Commissioner Woodham and Mr Batty, however, did not argue a case for Mr Banas to convince the Commissioner to grant voluntary redundancy. Mr Batty denied that was the agreement with Mr Banas and all that was happening was that his concerns were being canvassed with the Commissioner. Mr Batty did not recommend voluntary redundancy and it appears that the joint view of Assistant Commissioner Woodham and Mr Batty was that there were positions for Mr Banas and that he could be well placed within the Department at his existing grade.

240 At the very time of this conversation with the Commissioner, Mr Banas had rejected the Academy position as being unsuitable and had identified the Windsor position as involving too much travel, not yet being established and being a position that was fashioned on a Grade 5/6 position. The positions at the MRRC had not yet been made available for filling but it appears that Mr Woodham had already, if not at this time then shortly after, made an arrangement for Mr Cruickshank to fill the Grade 9/10 position at the MRRC although he was not a displaced person. That placement effectively eliminated Mr Banas from consideration for the MRRC position. It seems an open inference that the Department at a senior level had determined that Mr Banas should be placed at either the Academy or the Windsor position and that, over time, in the absence of any other position becoming available within the Department, Mr Banas could be persuaded or brought to the position where he would accept either of those two positions.

241 It is curious that when Mr Banas rejected the Windsor and the Academy position no step was taken under the Displaced Persons' Policy to have the issue of suitability decided by the WMC. It may well be that this step was not taken because the senior managers of the Corrective Services Department suspected that there was validity in Mr Banas' complaints and that the positions would not be determined as suitable having regard to his specialist experience and qualifications. Mr Batty accepted that Mr Banas was skilled and knowledgeable but faced the dilemma of finding a suitable position for his skills and knowledge. In cross-examination, he agreed that it would be difficult to place Mr Banas in a job with a preponderance of financial duties because there were not many of these positions available. Mr Batty also understood that, if Mr Banas took the Academy position his highly developed financial skills would diminish. In his affidavits, Mr Batty also accepted that the other positions being considered for Mr Banas would not have the same financial scope as his previous position and that there were other responsibilities which justified the same grading. Mr Batty also accepted that it was expected that displaced officers would accept a new placement when offered although a consideration would be given to issues of hardship, especially financial hardship in accepting the position offered. He confirmed that if there was a disagreement about the suitability or comparability of the position offered then it would be sent for evaluation by the WMC.

242 It is appropriate at this point to consider the nature of Mr Banas' qualifications especially in light of the respondent's submission that he was not a professional officer but an administrative and clerical officer who had accountancy experience and training. Mr Banas had a Masters Degree in Economics obtained in Poland recognised by the Australian Committee on Overseas Qualifications as comparable to an Australian Honours degree. He had the equivalent of a graduate diploma in Organising Data Processing. He had satisfied the requirements of the Australian Society of Certified Practising Accountants by completing course work at Macquarie University and the University of Technology, Sydney. By completion of a specified programme he had been elevated to the status of a Fellow of the Society. Mr Banas had over 20 years of professional experience mostly in a commercial environment but in both the public and private sector. In the five years before he migrated to Australia, he was Chief Accountant/Chief Economist (Finance Director) of a State owned commercial enterprise: in Australia, he had three and a half years as accountant for a large and well known public electronic company, two and a half years as Head Office Accountant of a large privately owned group of companies and had responsibility for the management of the financial aspects of a community housing Co-Operative as non-executive director (an honorary Board position).

243 It is also appropriate to consider in greater detail what Mr Farrell (his Regional Commander) had said to Mr Woodham about Mr Banas' qualities in January 1997: …in this position Joe has successfully managed a budget of $53m. In addition to this, Joe attended numerous training courses to enhance his skills, knowledge and experience equipping him to manage budgets and resources beyond the abovementioned amount. It is a great pity that a person of Mr Banas's skills, qualifications and proven performance finds themselves without a position applicable to their skills. At this point in time it is evident that those positions currently available are below his previous job status and professional standing. Such a placement would, in my opinion, be detrimental and soul destroying for a person who has operated at the highest level. In addition I do not believe it would be good for the Department to place someone into a position that is well below their qualifications and operational standards. Despite this ringing endorsement, Mr Banas was dismissed as simply status conscious when in fact he was only an administrative and clerical officer. That categorisation and its repetition in the respondent's submission was unworthy and unfair.

244 If the Corrective Services Department had determined that it required Mr Banas' skills, even if the Academy position or the Windsor position had to be modified to take advantage of those skills, the decision could have been made in February 1997 by the Department Head pursuant to the provisions of s 50 of the Public Sector Management Act to place Mr Banas in one of those positions. If this step had been taken at that time, Mr Banas could have been placed in the position of negotiating a set of duties which satisfied his desire to increase his financial skills and his area of expertise or alternatively, challenging the suitability of the position or rejecting the placement and leaving the Service. Resignation at this point would not (or may not have necessarily) resulted in the payment of a voluntary redundancy but it would have placed Mr Banas in the position of looking for a position elsewhere in circumstances where his previous position had just been made redundant and where he could present himself to prospective employers as a person in good standing, with senior management financial experience and continuity of service. By 1999, Mr Banas was not in such a position and had to present to a prospective employer as a person who had not worked for a year and who had spent another two years filling in his time by doing "project" work.

245 It is also of some concern that senior managers who were involved in making decisions about Mr Banas' suitability, especially for the Academy position, had little real understanding of the duties and responsibilities of Mr Banas' abolished position and the duties and responsibilities of the Academy position. Mr Batty in cross-examination accepted that he was not intimately aware of the duties of Mr Banas' position but he had a "general" awareness of the task and only had a "working" knowledge of the duties at the Academy.

246 Mr Peter Peters, the Acting Director of Personnel Services of the Department, was shown an extended duty description for the Academy position and accepted it had only one major financial component, although he thought there were other areas where a financial capacity was required. It was his view, however, that it was Mr Banas' choice to accept that position or not and so far as he was concerned no pressure was applied to Mr Banas to accept the position: the evidence suggests otherwise. Mr Peters was of the view that the Academy position required broad experience in the Department and although Mr Banas did not have the same breadth of experience as the previous occupant, it was sufficient to perform the duties. 247 Mr Crossley accepted that he may have agreed with Mr Banas that the Academy position may not have been similar to his previous position but he thought nevertheless that Mr Banas could extend its financial duties to fully utilise his skills in financial management. Mr Crossley said it was in the interest of the Department to retain Mr Banas even though no vacant position was similar to the one that had been abolished because of his qualities and experience and his invaluable operations knowledge. When Mr Crossley was confronted with the full duties of the Academy position he expressed some surprise about the essential requirement specified as being human resources qualities although he thought in the end that was "only a minor part of the job" - a curious conclusion. On looking at the content of the duties Mr Crossley was not too sure how Mr Banas would grapple with some aspects of the job.

248 The question then arises how these senior managers could have come to the conclusion that the Academy position was a suitable position for Mr Banas and that he was unreasonable in rejecting it. Not one of them appears to have taken into account Mr Farrell's view, being the person to whom Mr Banas reported under the previous structure, that the special nature of the duties performed by Mr Banas were such that voluntary redundancy was the only feasible option - a conclusion reluctantly arrived at because of Mr Farrell's recognition of Mr Banas' competence and experience. Mr Rave accepted that Mr Banas was not experienced in the type of responsibilities involved in the Academy position although he could perform the work: he recommended against the appointment of Mr Banas. These matters tend to support a conclusion that a decision was made early in 1997 by senior mangers of the Department to manoeuvre Mr Banas into the Academy position over a period of time by simply ignoring his protests and at the same time avoiding having the issue of suitability determined by the WMC. Importantly, nowhere in the evidence is there to be found a considered determination by the Department or the WMC, in accordance with the policy, that Mr Banas' qualifications were in short supply thus rendering voluntary redundancy unlikely.

249 In relation to the Windsor position, as earlier indicated Mr Banas had objected on a number of grounds including hardship because of the extensive travel involve in taking the position. Assistant Commissioner Woodham in February 1997 had promised that there would be no country relocation or an appointment involving transport relocation. Legitimate reasons such as these were recognised under the policy for declining a position. He also had expressed concern about the fact that it was not a real Grade 9/10 position, having been remodelled from a Grade 5/6 position, that there was no statement of duties for him to consider and evaluate, and the fact that it had not yet even been approved left the position one of mere speculation at that stage.

250 There was a deal of evidence concerning a draft letter in which the Department recognised that the Windsor position was unsuitable. That letter was not sent with that passage in it, having apparently been deleted following a discussion with Mr Donohue of the WMC. It was Mr Donohue's view that the Windsor position should be offered to Mr Banas and if rejected he would then be made excess and be sent to the Financial Services branch from mid-August 1997 and allocated project work. He was also to be registered with the WMC as excess and obtain redeployment assistance. It is significant that the Department's draft accepted that the Windsor position was not suitable for Mr Banas and that it was only changed because of Mr Donohue's preference for making the offer and then giving Mr Banas an option and spelling out the alternatives. The change to the letter put forward by Mr Donohue did not mean that the Windsor position was in fact suitable - it did no more than give Mr Banas the options referred to above. This letter of course arose in August 1997, well after the February 1997 discussion with Mr Batty and Assistant Commissioner Woodham. It is also of significance that the issue of suitability was not one that the WMC was proposing to determine because of any disagreement existing between Mr Banas and the Department.

251 On this material, I accept that it was more than likely that by August 1997 the Department had agreed with Mr Banas that the Windsor position was not suitable but in any event Mr Banas had legitimate reasons for declining the position. It also appears that, in the way the policy on displaced persons operated, the choice was essentially that of the officer unless there was some disagreement about suitability which could be resolved by the WMC. The fact that whether or not to accept a position offered to a displaced person was essentially a matter of the displaced person's choice was confirmed by Mr Peter Peters. Curiously, Mr Donohue's view prevailed over that expressed by the Department in its draft letter. It is difficult to understand how that view conformed with the policy or the role of the WMC which was to facilitate redeployment between organisations.

252 The third position identified was another internal vacancy - the Grade 9/10 position at the MRRC. In February 1997, Mr Banas had been told by Mr Batty and Mr Woodham that there would be positions available at the MRRC in May. This was a position which interested Mr Banas and he made enquiries about it. He put himself forward for consideration for this position and had assured a Mr Shortus from the MRRC that he was very interested in the position. When he heard nothing about the position and made further enquiries he was told by a Mr Dunthorne that his name was put on a whiteboard but that another displaced officer had won the position on a merit consideration: the position was now filled. This discussion took place in June 1997.

253 Mr Banas' further investigations revealed that the successful applicant, a Mr Cruickshank, was not displaced when he was successfully appointed to the position. Assistant Commissioner Woodham had been involved in arrangements for Mr Cruickshank to move from a Grade 9/10 project officer position to the position of Finance Administration Manager Grade 10 at the MRRC. This appointment was finalised in October 1997, well after Mr Banas was told that he was unsuitable for the job. It was apparently known that the Project Officer position would be deleted but it had not been deleted at the time of Mr Banas' enquiries. This led to the introduction of the notion of a "potentially displaced person" being able to obtain a position under the Displaced Persons Policy.

254 The evidence demonstrates that at no relevant time was Mr Cruickshank a displaced person: Mr Banas should have been appointed to the position at the MRRC but that did not occur. In trying to explain this extraordinary position, Mr Peter Peters was forced into the position of saying that the MRRC position was changing in June 1997 when Mr Banas was interested in it: it was more administrative with less financial responsibilities although he thought that Mr Banas could do the job. Clearly, this explanation was meant to cast doubt on the suitability of the position for Mr Banas with his concentration on financial responsibilities, a concentration which the Department was otherwise critical of as limiting his choices for redeployment. But when it suited the Department, it pressed Mr Banas about accepting the Academy position which was more administrative and human resources oriented than that of a financial role yet nevertheless regarded as a suitable position for him.

255 In final addresses, counsel for the respondent accepted that a mistake was made in not giving Mr Banas this position but that such a mistake should not be determinative of the case. The concession is properly made. Unfortunately, the evidence disclosed that a number of senior managers of the Department regarded Mr Banas as acting unreasonably in rejecting three internal positions and one external position at the Treasury. The three internal positions are the Academy position, the Windsor position and the MRRC position. The approach to Mr Banas is perhaps disclosed by the suggestion that amongst the positions he rejected was the MRRC position, a position he was clearly excluded from by some arrangement apparently made by Assistant Commissioner Woodham: Mr Woodham was a member of the Taskforce to consider placements.

256 Between March and April 1997, Mr Banas was on leave and because of his concern at being able to be placed in a suitable position he canvassed the availability of positions in his native Poland. On returning from leave he was allocated virtually no duties and wrote to Mr Batty about the placements available in the MRRC in May 1997. However, he received no answer to his queries and that is when he began applying for outside positions. He raised the MRRC position with Mr Peter Peters in their conference in July 1997. At this point, Mr Banas was entitled to feel that the Department was not particularly interested in his welfare and that his needs and professional development concerns were being ignored.

257 Somehow in the Department's thinking it became accepted that Mr Banas had rejected three positions, the Academy position, the Windsor position and the MRRC position. Mr Batty said that as a result of rejecting three suitable positions Mr Banas had not been made excess until September 1997. Mr Schipp was of the view that Mr Banas had been offered four jobs of which the Academy was the most urgent and appropriate one for Mr Banas. There is no evidence to support a conclusion that there was any urgency about the Academy position and it stands as an unanswered curiosity that this senior Grade 9/10 position appeared to have been open for over 18 months before Mr Banas was compulsorily appointed to it under s 50 in September 1998. This was a position that had been discussed with him in February 1997.

258 The Department had come to view Mr Banas as uncooperative: he had unreasonably rejected three or four suitable positions and was a person who could not be satisfied. The evidence suggests a very different picture. Two of the internal positions, the Academy and the Windsor positions, were both distinctly different to his previous positions and were not suitable for Mr Banas and his desire to increase his financial skills - a legitimate interest. The third internal position he would have accepted but he was wrongly deprived of it. The fourth position was an external position with conditions and I will deal that matter separately. It is clear however that the adverse perception of Mr Banas formed by senior members of the Department delayed his consideration for WMC assistance and appointment for outside positions and led to him ultimately being lost for months within the Department's system without duties. That perception also influenced Mr Banas' handling by the WMC.

259 Mr Banas applied for a number of positions outside the Department of Corrective Services but met with a number of difficulties. There were technical issues about whether or not these positions were within his grade or within a grade or above 5 per cent of his grade, but also issues about his incapacity to demonstrate an understanding of basic accounting methods. This last matter is somewhat difficult to understand in view of the high regard he was held in by the Department and ultimately the offer of a position made to him by the Treasury.

260 In December 1997, Mr Banas was offered a position at his existing grade in Treasury for a trial period of three months and on the further condition that he undertake some course work to improve his English and communication skills. Mr Banas accepted this was probably the best job he had been offered but he rejected the conditions. He said he was a displaced person and he was entitled to priority for the position: there was no suggestion that he was not capable of discharging the financial functions of the position. At this time, Mr Banas had taken up some courses both to improve himself and to keep himself busy. At the time of considering this position, Mr Banas stated that he had lost his self esteem and he had also lost faith in the system of placement especially in relation to outside positions. He had been told that he was not eligible for other outside positions because of the level of the pay or that he did not have basic accountancy skills which made him angry. He declined to attend further interviews for outside positions because he saw it as pointless. He had formed the view that he could "lose out" if he was not given the Treasury job after the three month trial. His chances of getting a settled and suitable position may well have been destroyed by such an eventuality.

261 For the respondent, the rejection of this position and what was regarded as its "reasonable" conditions further demonstrated the unco-operativeness of Mr Banas. I am not able to accept that submission. Mr Banas had demonstrated himself from the earliest time to be anxious to obtain a suitable position having regard to his special skills, his career development aspirations and his age. He did not wish to take up administrative positions - he wanted financial administrative positions. When the Department was unable to offer him anything suitable he made numerous applications outside the Department in accordance with the Displaced Persons Policy directives. In these endeavours he was assisted yet, in many respects, he appears to have been hindered by concerns for whether or not he was properly eligible to make such applications. He raised reasonable concerns and gave understandable reasons for rejecting internal positions which he thought were unsuitable. He became concerned and anxious when he was given work he regarded as meaningless and likely to adversely affect his financial skills. The evidence does not demonstrate Mr Banas to be an unco-operative person who was merely angling for voluntary redundancy: that impression appears to have gained currency within the Department and operated as a significant barrier to a speedy resolution of his situation.

262 It is undoubtedly true that, as time went by without an appropriate placement or resolution of his position, Mr Banas complained long and hard at the unfairness of his circumstances. I am sure that he dealt with people using harsh language and seeing conspiratorial motives for their actions or inaction. These were all signs of his distress which had been predicted by Mr Farrell and which were addressed by the policy but not by his Department.

263 One further point of minor significance in the evidence is nevertheless worthy of mention. At the end of 1999, when the issue of voluntary redundancy was finally settled, Mr Banas took what was initially contract work with the Australian Taxation Office (ATO) which later became a substantive position, although the details of the duties and responsibilities of the position with the ATO have not been the subject of evidence. The taking of the appointment by Mr Banas appears to be consistent with his long stated desire that he wished to pursue his financial skills rather than accepting an administrative appointment with few financial responsibilities. The taking of such a position also tends to support the view that Mr Banas was genuine in raising the inappropriateness of certain positions offered to him where the financial content of the responsibilities was missing. In the scheme of the arguments raised in this case, I accept that this is a minor point but it is one that falls in favour of Mr Banas rather than against him.

264 The next issue which requires consideration is the manner in which the applicant was treated and dealt with by the Department in relation to offers of voluntary redundancy. The first offer of voluntary redundancy appears to have been made in mid-June 1998. Shortly thereafter, the applicant spoke to Ms Lord regarding the Job Assist Scheme and Job Search Leave. This offer of voluntary redundancy in June 1998 came some nine months after Mr Banas had been declared excess and had been handed into the care and resources of the WMC. It is difficult to understand why he was not offered voluntary redundancy much earlier: Mr Batty confirmed that Mr Banas was the only officer from the abolished region who had not been redeployed. No undesirable precedent was going to be set by offering voluntary redundancy to the only officer left without a new position.

265 The offer of voluntary redundancy came approximately one month after Mr Banas wrote to the Department in May 1998. In this letter, he was replying to a request asking him to indicate whether or not he was prepared to accept voluntary redundancy. The terms of the letter disclose a state of utter despair on the part of Mr Banas. In the letter, he pointed out that it had taken some 17 months to get to this point of offering voluntary redundancy and he outlined his activities to obtain other positions and how he had lost jobs to which he was entitled such as that at the MRRC. He pointed out that it was his choice in December 1996 to have voluntary redundancy when he was displaced. He was then aged 47 and a successful manager with an impressive career record and excellent work references. Now, however, he was 49 years of age and "a broken man": he had a 17 month gap in his employment history for which he could not account. As a migrant from a non-English background and former public servant, he stated he would find it extremely difficult now to obtain alternative employment. His request was for compensation and redundancy as a "fair outcome" as contemplated by the Displaced Persons Policy.

266 It is at this time that an agreement was reached that Mr Banas' claim for compensation over and above redundancy payments would be treated as a separate issue. Mr Banas was nevertheless of the view that the matter would be dealt with on a contemporaneous basis and indeed his solicitors wrote to the Department on 3 July 1998 seeking a response within 14 days as to an appropriate measure of compensation. There was no response from the Department within that time frame and indeed it was not until some time in 1999 that compensation was refused.

267 By letter dated 15 June 1998 signed by Ms Lord, Mr Banas was informed that approval had been given for him to be offered a redundancy package under an approved programme. After outlining the benefits payable under the package, 30 June 1998 was nominated "as an appropriate last day of service" unless special circumstances could be demonstrated. On 26 June 1998, Ms Lord again wrote to Mr Banas referring to his letter of May 1998 and the offer of voluntary redundancy contained in her letter of 15 June 1998. In this letter it was noted that Mr Banas had sought additional compensation for the damage he perceived the Department had caused him and he was told that the advice of Corporate Counsel had been sought. Because of documentation needing to be provided to corporate counsel to enable him to make an informed decision, the claim for compensation was unable to be concluded "at this time". She noted that Corporate Counsel had recommended that the compensation issue be dealt with separately and she had accepted that advice.

268 The time by which Mr Banas was required to respond to the offer of voluntary redundancy was extended to 30 June 1998. Mr Banas replied to Ms Lord's letter of 26 June 1998 on 30 June 1998. He confirmed discussions that had taken place and that he would be entitled to Job Assistance Scheme payments and Job Search Leave of up to 12 weeks. He proposed to perform work until 28 August 1998 and then commence Job Search Leave on 31 August 1998. He noted what had been said about the issue of compensation being dealt with separately and that he would hear about it later. He then concluded by accepting "the standard government redundancy package under the above terms". The letter in evidence carries notations apparently under the signature of Ms Lord accepting Mr Banas' propositions with the Commissioner noting the arrangements.

269 Mr Banas then became aware that the issue of compensation would not be concluded by the time he had ended his service in August 1998. He declined to leave his position and indicated that he would continue to perform duties. He apparently took this view partly because he was convinced that an agreement had been reached, although his claim for compensation would be dealt with separately from the issue of redundancy and the matter would still be concluded by the time he left the public service. That may have been Mr Banas' expectation but there is nothing in the correspondence which supports the existence of such an agreement, although it is understandable that such a timeframe would be thought appropriate. So agitated did Mr Banas become about that issue that he came to regard Ms Lord's letter nominating a final day of service as a letter of termination; again, a position which is not supported by a reading of the correspondence.

270 The issue of compensation was now in the hands of the lawyers for both sides. There appear to have been no steps taken to resolve that issue but, rather, steps were taken which exacerbated the situation rather than calming it. On 8 September 1998, Ms Lord wrote to Mr Banas informing him that, as a consequence of him not entering on Job Search Leave on 31 August 1998, the Department deemed that he had breached the offer of voluntary redundancy and, accordingly, the offer was withdrawn. He had been required to proceed on Job Search leave by Mr Schipp in a letter dated 27 August 1998. Having withdrawn the offer of voluntary redundancy, Ms Lord said that she had reviewed all the vacant positions so that a "suitable placement" could be made, excluding only those outside the Sydney metropolitan area. Two positions had been identified, an Audit Manager/Clerk Grade 9/10, and a Business Manager at the Academy Grade 9/10. Both these positions had been rejected by Mr Banas in February 1997. Mr Banas was given 7 days to choose one of the positions and he was advised that, if he failed to choose one, Ms Lord would write to him again informing him which position had been selected as the most appropriate for him. In the meantime, costs incurred by Mr Banas in undergoing professional training courses for which he sought reimbursement had been denied because of his refusal to go on Job Search leave. Mr Banas responded by asking Ms Lord to deal with his lawyers and indicated that, as he had no work, he would be prepared to accept temporary placement in a job at the Office of State Revenue in Parramatta. 271

By letter dated 17 September 1998, Ms Lord, in the absence of a response from Mr Banas, determined that the most appropriate position for him to be placed in was that of Business Manager at the Academy. He was told that his appointment to the position would be effective immediately and that his actual first day of duty would be Monday, 28 September 1998. This appointment of Mr Banas to the Academy position was one apparently made under delegation to Ms Lord and pursuant to the power to place excess employees under s 50 of the Public Sector Management Act.

272 The withdrawal of the offer of voluntary redundancy was both an extreme over-reaction by the Department, and misconceived. The letter offering voluntary redundancy made no reference whatsoever to the subject of Job Search Leave, that matter was discussed separately with Ms Lord. The offer of voluntary redundancy was not contingent in any way upon Mr Banas taking Job Search leave from the end of August 1998. In his evidence, Mr Schipp could not identify in what document or in what way this agreement had been reached. Surprisingly, Mr Schipp, in his evidence, said that no consideration had been given to severing the Job Search leave from the offer of voluntary redundancy.

273 The terms of Memorandum 97- 27 also cast doubt on the capacity of Ms Lord for the Department to make Job Search Leave an integral part of the voluntary redundancy package so that rejection of the leave could be regarded as rejection of the package and permitting withdrawal of the voluntary redundancy offer. That Memorandum states that Job Search leave is not part of the voluntary redundancy package. The Memorandum, attached to Mr Batty's affidavit, is from the Premier's Department and deals with managing displaced employees. It is a 6 page document which, on the first page, states: In addition, while not part of the voluntary redundancy package , an option is now available to organisations, as appropriate, to assist employees who accept voluntary redundancy to look for work while still employed with the organisation by providing a period of up to 12 weeks Job Search leave. ( emphasis added ) Later in the document, under the heading "Job Search Leave", the following appears: Job Search leave is not part of the voluntary redundancy package. It is an option available to organisations, where appropriate, to assist those employees who have accepted an offer of voluntary redundancy to seek employment outside the New South Wales Public Sector during their remaining period of employment with their organisation. (emphasis added )

274 The document also makes it clear that the concession was only available to employees who were actively seeking alternative employment outside the New South Wales public sector. On the evidence, this clearly was available to Mr Banas. It is not surprising therefore that Job Search Leave was not mentioned as part of a "package" of arrangements for voluntary redundancy in the circulars that dealt with that topic.

275 It is clear from the Premier's Department memorandum that the grant of Job Search Leave could not be part of the voluntary redundancy package and therefore it could not have been part of a contract made with Mr Banas to take voluntary redundancy. Mr Banas' reluctance to leave employment on the nominated date could only have put in jeopardy the concession of Job Search Leave, but could not have called into question his agreement with the Department to take voluntary redundancy. The Department was quite wrong in asserting to the contrary and withdrawing the voluntary redundancy offer - it had no right to do so based on some notion of breach of contract. It may be of some significance that the later Premier's Department memorandum noted that once an officer proceeded on Job Search Leave, then voluntary redundancy could not be refused. It may well have been the Department's desire to rid itself of a person whom it regarded as being unco-operative and difficult that led to the withdrawal of the voluntary redundancy offer as applying pressure to Mr Banas but, ultimately, it was an ill-considered step that was fundamentally unfair to Mr Banas and left the Department appearing in a poor and spiteful light. Indeed, it was Mr Banas' evidence that nobody informed him that Job Search Leave was a condition of the offer of voluntary redundancy: I accept Mr Banas' evidence on this point.

276 A further curiosity in this unhappy saga is how the refusal of Mr Banas to take the Job Search Leave concession converted his status as excess and appropriate for voluntary redundancy (because no suitable position could be found for him) to the status of eligibility for appointment to two suitable positions (which had been available for nearly two years and which had not been suitable during this period). Nor does it explain why, if voluntary redundancy was to be rescinded, as an excess officer Mr Banas was not being considered for placement in other departments in the public sector. It seems that by this stage the provisions of the PSM Act and the displaced persons policy were simply ignored by the Department in its over reaction to Mr Banas' decision not to proceed on Job Search Leave.

277 After being placed in the Academy position by Ms Lord (a position he had rejected nearly 18 months earlier as being unsuitable), and having the offer of voluntary redundancy withdrawn, Mr Banas consulted his medical advisers and did not return to work. He stated in his evidence that, at this stage, he was sick and had lost faith in the system and the Department, and felt unable to again work for the Department of Corrective Services. He had a medical certificate from Dr Napper, stating that Mr Banas was suffering from an adjustment disorder, depression, anxiety and that he was medically unfit for work initially between 22 September 1998 and 22 March 1999. In light of these developments, it appears that solicitors acting for Mr Banas then contacted the Department of Corrective Services and, by letter dated 12 October 1998, confirmed the fact that the Department was willing to reinstate its original offer of voluntary redundancy to Mr Banas. The letter contained Mr Banas' instructions to advise his acceptance of the offer of voluntary redundancy.

278 The first thing to note about this development is the fact that voluntary redundancy was again to be made available to Mr Banas although he now held the substantive position at the Academy and was no longer a displaced person. This did not seem to present any barrier to the Department and may be further evidence of the flexibility which is said to attend these arrangements. It may also indicate that the Department was prepared to take whatever steps it thought appropriate with scant consideration of the technicalities of the existing circumstances - when it suited the Departmentit was able to address the realities and the outcomes it desired.

279 It was not long before this reinstated offer of voluntary redundancy was also under threat. The Department became aware of Mr Banas pursuing a workers compensation claim. Contact was made with Mr Banas' solicitors who were informed that the Department's policy was that a voluntary redundancy package would not be provided to a person who had lodged a claim or was considering lodging a workers compensation claim. He was informed by his solicitors that the Department was within its rights in taking this position and that it was essentially for Mr Banas to decide whether he wished to accept the Department's voluntary redundancy package or, in the alternative, pursue a worker's compensation claim. He was told by his solicitors that he would not be able to accept the redundancy package if he proceeded to lodge a workers compensation claim. His solicitors also informed him that, because of a conflict of interest, they could not appear for him in any workers compensation proceedings.

280 It appears from Ms Lord's evidence that the Department did not proceed to process the voluntary redundancy because of the workers compensation claim being pursued by Mr Banas. No correspondence had been received from his solicitors dropping that claim, although Mr Banas said he gave that advice to his solicitors and made a complaint about them when they failed to pass on his instructions to the Department. The Department was not notified of this development until a number of months later. It was Ms Lord's view that, while the displaced persons' policy could not operate to prevent an employee pursuing entitlements to workers compensation, those claims had to be finalised before voluntary redundancy could be effected.

281 Early in 1999, after Mr Banas' claim for weekly payments of compensation had been denied, Ms Lord arranged for Mr Banas to be assessed by HealthQuest to determine his fitness to continue employment in the public sector. As a result of that initiative, in late April 1999, a report was received from Dr Gapper of HealthQuest.

282 The position taken by the Department in relation to this reinstated offer of voluntary redundancy was, again, not in accordance with the displaced persons policy. The policy, dealing with the voluntary redundancy package, contained a provision under the subheading "Eligibility", which said: Where approved, displaced employees are eligible for an offer of a voluntary redundancy by the organisation except the following: … Employees on workers' compensation whose claim is based on compensation for termination (unless the agreement of their workers' compensation insurer is obtained to any separation payment being made) or others awaiting determination of claims against the employer for termination of services; and employees in relation to whom action is in train to terminate their services. 283 Two things are obvious. Firstly, Mr Banas was not "on" workers compensation - his claim has been rejected by the insurer and, although he seems to have proceeded to the conciliation stage, no claim for workers compensation was ever pursued in the Compensation Court. Secondly, his compensation claim relating to stress was not a claim "based on compensation for termination" nor was it otherwise related to termination of services. Mr Banas was still employed by the Department and was under no notice of termination. There is no reason at this stage why the reinstated offer of voluntary redundancy could not have been finalised. The Department either misapplied the policy or determined to apply maximum pressure to Mr Banas by again withholding voluntary redundancy if he pursued a workers compensation claim. As Ms Lord noted, she had not heard from Mr Banas' solicitors that the claim would be dropped. This approach does not fit with a professed approach that officers were entitled to pursue workers compensation claims: a new approach was adopted by the Department in which voluntary redundancy could not be finalised or granted until the workers compensation claim was finalised.

284 By the end of 1999, the Department was in possession of medical advice (the details of which will be considered later) indicating that Mr Banas, at least, could not continue working with the Department. Consideration was again given by the Department to voluntary redundancy, but Mr Peters reminded the Department that the displaced persons' policy had no application since Mr Banas had been placed in a substantive position under s 50 of the Public Sector Management Act. Despite the action taken pursuant to the statutory provisions, Mr Banas was given the voluntary redundancy package under the displaced persons' policy.

285 It is significant that, when Mr Banas declined to proceed on Job Search leave in August 1998, the Department informed him, in its letter of 27 August, that the consequence of not taking Job Search leave and rejecting voluntary redundancy would be redeployment. The letter did not mention the use of the WMC or consideration of his position as a person excess to the needs of the Department, a classification he had obtained in September 1997. Viewed against this background, the later appointment of Mr Banas to the Academy position assumes the appearance of a penalty imposed because of Mr Banas' lack of co-operation. Whether Mr Banas' actions might be described as pig-headedness or tenacity, the letter was one likely to have the effect of placing significant pressure on Mr Banas to alter his position about taking Job Search leave. Under the displaced persons' policy, of course, as has earlier been indicated, once on Job Search leave, an officer could not return to work but was required to take voluntary redundancy.

286 During the period that Mr Banas was offered voluntary redundancy, had it withdrawn and then reinstated, he said that he was stressed, sick, trying now to get out of the public service and to recover. By accepting voluntary redundancy, he was now agreeing to get out and leave the Department and, in fact, instructed his solicitors not to pursue his workers compensation claim. It was his view that they had not notified the Department of this development. He said he gave up his worker's compensation claim because he was sick and he was now no longer considering it. He said that by December 1998, he was frustrated and sick and he now cannot explain why he did things at that point of time - he was in an emotional state, he just wanted to "get out" and "start working". In his May 1998 letter to the Department, he had described himself as a "broken" man. It may well be that, when Mr Banas initiated a claim for workers compensation, he was trying to bring pressure on the Department to finalise the issues that had arisen between them. The claim did, however, have medical support from Dr Napper.

287 The next issue to be considered concerns the nature of Mr Banas' medical condition. On 15 December 1998, Dr Napper, consultant psychiatrist, certified that the applicant had been under his care since 13 October 1998 and had attended for three consultations. He considered him to be suffering from an adjustment disorder, depression and anxiety, and that he was medically unfit for work from 22 September 1998 to 22 March 1999. He expressed the opinion that Mr Banas' employment had been a substantial contributing cause of his current illness. Dr Napper and Mr Banas' treating general practitioner had advised him to lodge the workers compensation claim, which they were supporting. 288 Dr Napper recorded the history given to him by the applicant. He was told that, for at least two years, Mr Banas had suffered recurrent anxiety, depression, insomnia, headaches, sweating episodes and hypertension. Those symptoms had arisen directly from the stresses experienced from Mr Banas' working conditions. Reference was made to his redeployment and how his responsibilities had been significantly downgraded. Mr Banas' job had been taken away from him and replaced with mundane, menial duties: he frequently would turn up for work and find there was little work for him to do. Reference was made to his attempts to find alternative employment and how they had been hindered. He had complained that his Department had expected him to turn up at work on many occasions to do virtually nothing when he was used to performing at higher levels. The Department had essentially refused to do anything about his situation. Dr Napper then stated: The stress of this unresolved matter has been the main contributor to Mr Banas' current illness. Mr Banas remains unfit to return to work as the work conditions that have caused his illness are still present and remain unchanged. 289 In his oral evidence, Dr Napper said that he had in the order of 20 sessions with Mr Banas, which were necessary because he suffered from a particularly severe adjustment disorder which was difficult to treat. He said the only real improvement in his condition appeared when he started a new job in approximately February 2000. He had seen the report of Dr Lucire tendered by the respondent in the present proceedings, but could not support the opinions expressed in that report.

290 Dr Napper was closely cross-examined and challenged in relation to some of his opinions. I was impressed with the manner in which Dr Napper dealt with these issues and the independent manner in which he expressed himself. I accept without reservation his evidence on the medical issues with which he deals.

291 In January 1999, Mr Banas was referred by the Department to Dr Judith Fischer, consultant psychologist, in relation to his workers compensation claim. A 12-page assessment written by Dr Fischer was tendered in evidence. Dr Fischer had interviewed Mr Schipp, Mr Batty and Mr Farrell in relation to workplace matters. Dr Napper was also consulted. A substantial history was taken by Dr Fischer, including Mr Banas' early history in Poland and the circumstances under which he left that country. It was noted that Mr Banas purported to be in excellent health prior to his difficulties at work but, that since early 1997, he had developed hypertension and a range of symptoms associated with anxiety and depression. Mr Banas had consulted a psychiatrist, Dr Canaris, for a short period in 1992 following his previous workplace difficulties. He had made a claim for work-related anxiety and stress which was accepted in relation to this 1992 episode. He had indicated that this claim was related to pressure caused by structural changes in the Department and that he had been absent from work for a period of six months and was ready to return to work after four months, but the Department was unable to offer him work for a further two months.

292 Under the heading "Results of Clinical Interview", Dr Fischer stated that Mr Banas spoke of strong feelings of betrayal and abuse from his employer and the WMC and, at times, a strong paranoid flavour was noted in his thinking. Mr Banas viewed himself as a hard-working, ethical and loyal employee who prided himself on his professional skills and work ethic. He described the onset of symptoms in early 1997 as he struggled to understand and resolve his employment difficulties. He spoke of frequent sleep disturbance, anxiety, headaches, excessive sweating, irritability, withdrawal from others, loss of confidence and poor self-esteem and constant worry about his future. He obtained relief from time to time when there were prospects of employment but, in general, he reported feeling increasingly depressed and pessimistic about his life for the past two years. Mr Banas detailed that he had lost all confidence in his employer and the public service in general as well as confidence in himself and his ability to redevelop an optimistic belief in himself and his future employability.

293 Dr Fischer, under the heading "Diagnosis", stated: On the basis of the clinical interview and assessment it is my opinion that Mr Banas' described and observed symptoms fit the criteria under DSM-IV for a Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood. From Mr Banas' symptom description it would seem that he suffered from fluctuating signs of anxiety and depression and the Adjustment Disorder did not surface until the latter part of time at work.

It was noted that Dr Napper believed that his patient was suffering from a Chronic Adjustment Disorder with anxiety and depression. Dr Napper considered that his patient was possibly an obstinate man who was aware of his rights and pursued them like a bulldog with a bone. In the course of her report Dr Fischer made the following points: · Mr Banas struggled with the notion of what he saw as dishonesty and manipulation from others when all he desired was security, a position utilising his skills and job satisfaction; · Mr Banas' strong need for guaranteed job security may well be fuelled by the insecurity many migrants experience in finding their identity, stability and place in a new country; · History taking did not reveal any contributory non-work related stresses or maladaptive personality traits which would account for his current psychiatric condition; · by February 1998 Mr Banas' psychological health had deteriorated significantly and by the time he left work in September 1998 he was far from rational in his decision making and set on being compensated for his mismanagement by the Department. 294 Dr Fischer concluded that, at interview, Mr Banas impressed as a strong-minded individual with high personal and professional standards and as someone whose self-perception and self-esteem stemmed in large part from his career and work achievements. His manner was somewhat intense, his personality quite rigid and his standards and expectations for himself and others high. His supervisors might well have labelled him as a difficult and problematic employee due to his personality style. Dr Fischer concluded: Taking the claimant interview, clinical assessment, workplace assessment and liaison with Mr Banas' treating psychiatrist into consideration, it would appear that the inconsistent and confusing management of Mr Banas' case by the employer has acted directly to cause his present psychiatric condition. Therefore it is my assessment that the workplace should be liable for his current claim. Dr Fischer made three recommendations, the third of which was in the following terms: The Department review its current guidelines for the management and support of its supernumerary and displaced staff. 295 It will be recalled that, during his absence from work in April 1999, the Department decided to have Mr Banas medically examined to determine whether he was fit to resume duties. He was referred to HealthQuest and a report was provided by Dr Gapper dated 27 April 1999. In this report, Dr Gapper advised Mr Banas not to return to work at the Corrective Services Department due to the risk of exacerbating his condition. It was noted that, at present, while his symptoms were relatively mild, they did not preclude performing administrative work elsewhere. Redeployment outside the Corrective Services Department was advised.

296 In submissions, an issue arose as to whether the history given to the doctors by Mr Banas could be treated as evidence of the facts. The respondent submitted that it could not, whilst it was submitted for the applicant that the judgment in R v Welsh (1996) 90 ACrimR 364 was decisive of the point. In that case, the Court of Criminal Appeal decided that the effect of s 60 of the Evidence Act 1995 (NSW) was to make the history taken by a doctor, once it was admitted, evidence of the truth of the facts recorded therein, subject to the discretions available under Pt 3.11. The submission continued that this was the law in New South Wales, citing in support of that approach Moran v Amoret Installations Pty Ltd [2000] NSWCA 106 (2 April 2000 at paras 5, 6 and 7), and the judgment of Heydon JA, referring with approval to Hunt J's decision in Welsh, in Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25 (22 February 2001).

297 It is evident from the foregoing paragraphs that I have found that the Department's treatment and handling of Mr Banas during the period of his displacement was unfair. Without endorsing his categorisation of that conduct or the tenor of the language he has used from time to time in his correspondence, the substance of a number of Mr Banas' complaints were quite justified. Mr Banas' medical condition was clearly put as part of his case and he provided evidence in that regard including a medical history which seems to be consistent. The evidence was not seriously challenged. There is sufficient connection between the history given by Mr Banas, his medical condition and the findings of unfairness that I have made to leave me comfortably satisfied that the views expressed by Dr Napper, Dr Fischer and Dr Gapper are soundly based. In any event, these medical opinions were adduced in evidence without objection and, if needed, I would apply the approach of Hunt CJ in CL in Welsh in connection with the medical history given by Mr Banas.

298 In considering the medical evidence, it is also relevant to note the nature and extent of the Department's knowledge of Mr Banas and his personality. As already noted, a claim for compensation was ultimately accepted in 1992 because of stress and anxiety suffered by Mr Banas relating to doubts as to the availability of permanent and stable employment. Mr Batty told Dr Fischer that he had observed Mr Banas going downhill over a period of years and that he had become bitter and emotional, unreasonable and easily excitable. The terms of his correspondence with the Department during the period of being a displaced or excess employee also disclosed a shrillness which should have raised concern. Indeed, the respondent's case, in part, was that Mr Banas had become a difficult and unco-operative person who made unjustified complaints about the manner of his treatment, taking them to the extent of complaining to ICAC and the Law Society in relation to the conduct of his own solicitors.

299 It was recognised by the terms of the displaced persons' policy that losing a position in the public service placed employees under considerable stress and that they were to be handled with care and compassion and were to be offered counselling. Mr Batty was not aware of any counselling being offered to Mr Banas nor of his seeking such assistance. It must have been obvious to the senior officers of the Department that such a course was desirable in Mr Banas' case, especially as they had observed at first hand his deterioration. The applicant had been described as a highly qualified, loyal, professional administrative officer, a good asset to the Department and a valuable employee. By May 1998, he referred to himself in correspondence with the Department as a "broken man" - and all the evidence tends to support that description. In his oral evidence, Mr Batty said he could understand that Mr Banas was concerned about his future: he was aware of the emotional "overlay" and that it was "understandable". He accepted that employees would be under stress where there was uncertainty relating to their employment. It is not surprising that Ms Lord was ultimately able to say in cross-examination that Mr Banas was not well handled by the Department and, as Mr Peters said, the Department was not actively managing him during the three years he was a displaced and excess officer.

300 In light of the medical evidence which I have accepted and which I regard as being extensive, and the direct relationship to his medical condition of the unreasonable and unfair treatment and conduct of the Department while he was a displaced/excess person, it is appropriate in this case that there should be a separate amount paid by the respondent in relation to this aspect of the applicant's case. In arriving at this conclusion and the availability of such relief in the circumstances of this case, I have been much influenced by the decision of Hungerford J in Stoneham v The Speaker of the Legislative Assembly of New South Wales [28] - [32] and the judgments of Marks J in Pullen v R & C Products Pty Ltd (1994) 6 IR 138 at 214-216; and in King v State Bank of New South Wales and the judgment of Peterson J in Clark v Doherty. I readily accept the caution which should attach to the judgments of Hungerford and Peterson JJ flowing from the fact that they were interlocutory judgments and that it was therefore unnecessary to come to a concluded view as to the availability of an order of the nature that is proposed to be made in this case. Nevertheless, I find in particular the case law referred to by Hungerford J as persuasive, bearing in mind the width of the jurisdiction available under s 106 and the necessary connection which must be demonstrated as pointed out in Brown v Rezitis (1970) 127 CLR 157. The question of jurisdiction to make orders for stress, pain and suffering has now been confirmed by the Full Court in King v State Bank of New South Wales (No 2) [2002] NSWIRComm 353.

301 The written submissions for the respondent seemed to accept the approach of Marks J in King v The State Bank of New South Wales on the basis that the case considered the discretionary jurisdiction of the Commission in Court Session to award damages for personal injury within the context of broader claims made pursuant to s 106 of the Act. This submission for the respondent seems to accept not only the validity of such an approach but also in order for its approach to succeed in this case, the claims pursued by the applicant need to be accepted as personal injury and common law claims dressed up as a s 106 action. I am unable to accept that submission and, in my view, that submission pays no regard to the unremitting concentration of the applicant's case upon the conduct of the respondent, its unfairness and the various ways in which that unfair conduct adversely affected the applicant. The presentation of such a case is everyday fare in matters brought under s 106 of the Act.

302 It may well have been the manner in which the applicant approached the calculation of money orders that may have excited the interest and attention of the respondent. The Full Court in Westfield Holdings v Adams made it abundantly clear however that approaches from other areas of the law including concepts of common law damages and mitigation may have a role to play in the way in which the relief is fashioned. Those approaches alone will not convert a case brought under s 106 into a common law claim for damages or proceedings in tort. As was held by the Full Bench in Harcourt Brace & Co (Australia) Pty Ltd v Cory (1997) 81 IR 321 at 337 (in relation to s 275 of the previous Act) in determining what is just in all the circumstances under these statutory provisions, involved the exercise of a jurisdiction wider than available under the common law principles as to damages. I have addressed this issue at this point and a little out of order in order to emphasise the nature of the proposed orders. I return to this subject matter at paragraph 287 and following. 303 On the evidence, when Mr Banas took sick leave in September 1998 following his compulsory appointment to the Academy position, the Department applied the outstanding sick leave, then annual leave and, finally, extended leave available to him. He was apparently considered on unauthorised leave from February 1999 until voluntary redundancy was paid to him in December 1999. In view of the findings I have made in relation to the unfairness arising from the Department's conduct, Mr Banas should be paid a further sum being the equivalent of nine months' salary calculated by reference to his annual salary. In reaching this conclusion, I have given general rather than precise consideration to the various periods of leave available to Mr Banas and thereby discounted the full claim. 304 By reference to the further amended summons for relief it may be seen that orders for different times and in different amounts have been made in relation to the general subject matter raised in Clause 3 and Clause 4. As noted earlier, the relief claimed in Clause 5 was not pressed. I am not prepared to make orders contemplated in Clause 6 and, in the alternative, Clause 7, which seek compensation for economic loss incurred as a result of Mr Banas' diminished earning capacity. While the evidence did indicate that his salary in the public service was approximately $60,000 per annum, (there was evidence of his hourly rate only} the position he obtained with the Australian Tax Office ultimately resulted in a very much lower salary of approximately $49,000 per annum. The applicant has already been paid redundancy under the voluntary redundancy scheme and no additional amount is proposed in relation to redundancy. It is frequently the case that a person who loses their employment because of redundancy is unable to obtain a position of the same status or salary, but the redundancy payment does not alter between those who successfully obtain employment at the same or similar level or even at a superior level. There is nothing in the circumstances of this case that justifies an order referable to the amount of lost salary due to Mr Banas' inability to obtain a position at an equivalent rate of pay. There was no direct evidence of lost opportunity outside the public service which would justify such an approach. I deal with consequential orders at the conclusion of the judgment.

305 Having set out the manner in which the contract was unfair because of the conduct of the Department, and having indicated the nature of the two orders proposed whereby the Department is to make payment by way of remedy to the applicant, it is appropriate to consider the jurisdictional and discretionary matters raised by the respondent in order to ascertain whether or not they are capable of impacting upon the relief proposed.

306 Although not stated in so many words, the thrust of the respondent's submission was that the provisions of ss 50, 51, 52, 53 and 55 of the Public Sector Management Act acted as a code and that there was no room under s 106 of the Industrial Relations Act to deal with those matters exclusively covered by the PSM Act. While no direct reference was made to it, a similar proposition in relation to the Public Service Act 1979 dealing with equivalent provisions was dealt with by the Court of Appeal in Public Service Association of New South Wales and anor v Industrial Commission of New South Wales and anor (1985) 1 NSWLR 627. In that case, the Public Service Association had sought a redundancy award, but the sections of the Public Service Act dealing with excess staff and excessive salaries were raised as excluding the award-making power of the Commission. The Court of Appeal held that, because the wording of the Public Service Act in ss 113 and 114, dealing with aspects of "industrial matters" (as defined in the Industrial Arbitration Act, namely, excess staff and excessive salaries), indicated by way of negative implication that the functions and powers these sections created were to be exercised under that Act only by the persons mentioned in them, and could not be saved by s 8 of the Public Service Act which stated that "unless otherwise expressly provided, nothing in this Act affects the Industrial Arbitration Act, 1940". Accordingly, the Industrial Commission's jurisdiction relating to excess staff or excessive salaries in the public service was withdrawn in respect of matters provided for in the Public Service Act ss 113 and 114. However, the Commission still retained jurisdiction to flesh out or complement the scheme set up by those sections provided any award made by it was not inconsistent with or contradictory of the specific provisions of those sections. There was no indication of an intention by the legislature to preclude the Commission from entering that part of the field. Indeed, it was submitted for the respondent that the displaced persons' policy supplemented the statutory scheme dealing with these matters under the Public Sector Management Act.

307 I firstly consider the provisions of s 50 of the PSM Act. In broad terms, the department head may direct the transfer of an officer "from one position in the department to another position in the department at the officer's existing salary" so long as the officer possesses the qualifications required for the other position and the work assigned to the other position is appropriate to that salary. There is also a power, with the approval of another department head, to transfer an officer from a position in the department to a position in another department at the officer's existing salary. It is said that this was the power exercised in 1998 by Ms Lord in directing Mr Banas to take up the position at the Academy. Ms Lord was not the department head, but she may well have been delegated that power if it was available to be delegated, but this subject was not raised by the applicant. The position occupied by Mr Banas had been abolished in December 1996 along with the region within which it was placed. There is no evidence in the present proceedings that he was appointed to any other position before 1998 when appointed to the Academy and, in the meantime, he appears to have been supernumerary and performing project work and work as allocated. In September 1997, he was declared excess to the Department's needs and it therefore seems doubtful that he could have been transferred from one "position" in the Department to another "position" in the Department under s 50 when appointed to the Academy in September 1998.

308 It may be that in s 50 the reference to "one position" may encompass a person who has no position, has been declared excess and is supernumerary, but that is a curious result to say the least, having regard to the nature of the terms used and the fact that persons are appointed to positions in the public service. A concluded view on this operation of s 50 in relation to Mr Banas is not required as there is nothing in the orders proposed to be made which would impermissibly interfere with the power of the department head under s 50 of the PSM Act. 309 There is another aspect that can be dealt with under s 51, which does not alter that conclusion. Section 51 deals with excess staff and is very similar to s 113 of the Public Service Act 1979. Under this provision, if the department head is satisfied that the number of persons employed in the department exceeds the number that appears to be necessary for the effective, efficient and economic management of its functions and activities then the department head is to take such steps as are practicable to secure the transfer of the excess persons to vacant positions in other departments at their existing salaries. If excess persons cannot be usefully employed in other departments, then a regime is laid down for dispensing with the services of those persons. In terms, s 51 does not require a department head to declare an officer excess, but that decision was certainly made in relation to Mr Banas in September 1997. There appear to have been few, and certainly no effective, steps to secure Mr Banas' transfer to a vacant position in another department at his existing salary: he was never directed to take up such a position under s 51. Certainly, no move was made to dispense with Mr Banas' services because he was excess. Nothing in the proposed orders touches upon the power of the department head under s 51 of the PSM Act.

310 Section 52 deals with excessive salaries. Under this provision, where the department head is satisfied that an officer in a department is in receipt of a greater salary than the maximum fairly appropriate to the work performed by the officer, then the department head shall take such steps as are practicable to assign the officer work of a class appropriate to the officer's salary. There is no direct evidence that the department head formed this view in relation to Mr Banas, but it may have been the way Mr Banas was able to be allocated project work after his position was abolished in December 1996: the allocation of project work was not however appointment to a new position. The section also allows transfer to a vacant position in another department on existing salary if appropriate work cannot be assigned to the officer or where the officer is unfit or incapable of performing work appropriate to the officer's salary. If such work cannot be found, there is provision to reduce the officer's salary and certain savings provisions are made in relation to preserving eligibility for promotion and like matters. This part of the provision was not utilised and again, nothing in the proposed orders touches upon any power available under s 52 although, as stated, s 52 was, most likely, not activated in relation to Mr Banas.

311 Under s 53, an officer who refuses a transfer under ss 50, 51 or 52 may be dismissed from the public service "… but only if that department head has certified that the officer had no valid reason for so refusing". Where the department head considers that an officer had a valid reason for refusing a transfer, then the officer may be allowed to decline the transfer without prejudice to any rights that the officer would, if the transfer had not been declined, have had to any future promotion or appointment. The section is of some interest in the present case. Until September 1998, Mr Banas had been pressed with at least two positions, the Windsor position and the Academy position, which senior officers of the Department regarded as suitable for him having regard to his experience and qualifications. In all of this period, no step was taken by the Department Head to compulsorily transfer Mr Banas to either of those positions. The Displaced Persons Policy did not operate in this way, it was primarily consensual in operation. If that step had been taken, it was open to Mr Banas to contest the direction on the basis that he had a valid reason for refusing the transfer.

312 Even on the respondent's argument, if Mr Banas failed to convince the Department Head of the existence of such a valid reason, the certification of a valid reason was open to challenge and public law remedies were available. Such Public Law remedies may include administrative law remedies and statutory rights available to public sector employees. The respondent argues that while these remedies and rights are available, they are not "justiciable" under s 106 of the Act. The submission, however, overlooks the capacity of the Court to make a declaration (see s 154) and there is no reason why a declaration concerning the operation of s 53 of the Public Sector Employment Act could not be made in conjunction with proceedings brought under s 106: it is unnecessary to do so in the present proceedings. In fact, Mr Banas was not invited to address the unsuitability of the positions - he was simply given a choice between two positions he regarded as unsuitable. Quite apart from that consideration, there is nothing in the proposed orders which would conflict with the provisions of s 53. 313 Section 55 of the PSM Act provides that an officer is not, except as provided by the PSM Act or any other Act, entitled to any compensation as a result of the officer's services being dispensed with or the officer's salary being reduced. Putting to one side for a moment whether relief under s 106 of the Industrial Relations Act might fall within the term "or any other Act", Mr Banas' services were not dispensed with. In this regard, I agree with the approach adopted by Peterson J to similar provisions under the Teaching Service Act (s 97(2)): the words "being dispensed with" bear the ordinary meaning of being terminated at the behest of the employer and are quite inappropriate to identify a situation where an employee voluntary terminates or where an employer and an employee mutually agree to a termination (see Clark & Doherty v State of New South Wales [2000] NSWIRComm 274). 314 The findings of unfairness revolve previously around conduct whereby the respondent misapplied, or did not make fully available to the benefit of the applicant as a displaced person, the provisions of the displaced persons policy. That document, negotiated by public sector unions under the auspices of the Labor Council, has at least the status of an arrangement operating alongside the contract of employment. The orders proposed are not inconsistent with or contradictory of the nominated provisions of the PSM Act.

315 The written submissions in reply for the applicant confirm that, in these proceedings, it does not seek to review any direction made by the Head of the Department in regard to any relevant section of the Public Sector Management Act. While the applicant acknowledged the difference between the making of an award and orders under s 106, it was submitted that in a manner similar to that contemplated by the Court of Appeal in the Public Service Association case, awards and orders including orders under s 106 could run together with the provisions of the Public Sector Management Act so long as they did not transgress upon the areas specifically reserved for the Head of the Department pursuant to ss 51 and 52 (previously ss 113 and 114 of the Public Service Act). I concur with that submission.

316 In addition, the applicant's submission drew attention to the judgment in Totalisator Agency Board v TAB Agents Association of NSW and ors (1995) 36 NSWLR 594 where the Full Industrial Court found that a statutory provision which contained the phrase "… subject to the direction and control of the Minister" did not preclude the operation of s 275 of the Industrial Relations Act 1991. Hungerford J (with whom Cahill Dep CJ agreed) stated: … the short answer to the appellant's submission is that the respondent's claim does not in fact seek a review of the ministerial directions but rather that the contracts or arrangements made with the appellant be avoided or varied under s 275. I think the distinction to be not unimportant and it may not be said the appellant is thereby rendered unable to comply with the ministerial directions - the appellant has complied with those directions but it is the Court, on the application of the respondents, which is asked to avoid or vary the contract or arrangements on the necessary grounds being established. Section 5(1) of the TAB Act constitutes the appellant as a body corporate and makes it liable to sue or be sued in its corporate name and of doing and suffering all such acts and things as bodies corporate may by law do and suffer; I have no doubt that that evinces a legislative intent to make the appellant subject to law, such as s 275 of the Industrial Relations Act, in the absence of an express provision to the contrary. 317 There are significant differences between the Public Service Act 1979 and the Public Sector Management Act. Unlike the Public Service Act, the PSM Act does not contain an equivalent to s 8 stating that, unless otherwise expressly provided, nothing in this Act affects the Industrial Arbitration Act 1940, but in a number of places the PSM Act specifies that the Industrial Relations Act is not to apply (eg s 27, excluding the appointment or failure to appoint persons to a vacant position in the public service: s 38E, excluding industrial arbitration or legal proceedings in relation to special temporary employees; s 42J, excluding industrial arbitration or legal proceedings in relation to executive officers: s 42S, providing for compensation to an executive officer who has no right to return to the public sector being determined by the Statutory and Other Officers Remuneration Tribunal). In this context the provisions of s 404 of the Industrial Relations Act 1996 is relevant providing that the Act binds the Crown in the Right of New South Wales and so far as the legislative power of Parliament permits, the Crown in all its other capacities. This provision has relevance in light of the approach adopted by Hungerford J to the later enactment of s 275 and its effect in the TAB Agents case. Considering all of the matters raised by the respondent Department, I am unable to accept the submissions made as to the PSM Act operating so as to exclude the relief proposed in the present case.

318 The respondent also submitted that the claim brought by the applicant was simply a common law claim or workers compensation claim dressed up as a contracts case under s 106 of the Industrial Relations Act. On the analysis of the unfairness which permeated the relationship between the applicant and the respondent Department especially between 1997 and 1999, I am unable to accept that bald characterisation urged by the respondent. More particularly, it is said that the claim for economic loss (which falls away in light of my decision to make no order in relation to this claim for relief) and the claim related to stress and personality disorder were confined by the provisions of s 151E(3) of the Workers Compensation Act.

319 A number of restrictions are placed on common law damages by Part V Division 3 of the Workers Compensation Act of which s 151E is part. Sub-section 3 provides that the Division applies to an award of damages in respect of an injury caused by the negligence or other tort of the worker's employer even though the damages are recovered in an action for breach of contract or in any other action. The respondent emphasises the words "or in any other action". An award of money under s 106 of the Act and its predecessors has not been regarded as an award of damages nor has the statutory cause of action been regarded as a tort. (similarly see Commissioner of Police v The Estate of Edward John Russell & ors (2002) 55 NSWLR 232 - proceedings under provisions of the Anti-Discrimination Act 1977 are probably not torts). While a breach of contract might be contemplated under s 106 the Commission in Court Session does not award damages for such a breach but often avails itself of approaches found in other areas of the law in order to assess an appropriate money order which is just in all the circumstances of the case. This approach was highlighted in Westfield Holdings v Adams (2001) 114 IR 241, and I have dealt generally with that approach in paragraph [273]. Indeed the availability of multiple remedies was directly referred to by Kirby P in Walker v Industrial Court of New South Wales and anor (1994) 53 IR 121 at 134:

It is by no means unusual in our legal system for the one set of circumstances to give rise to a number of remedies which the person affected may pursue sometimes in the one court, sometimes in differing courts, to the full extent of that person's entitlement. The commonest example is the entitlement of an injured worker to bring proceedings for benefits under the Workers Compensation Act, and to maintain a claim for damages at common law. The ingredients of the various entitlements may be different. But the existence of alternatives has never excluded a person from pursuing rights expressly conferred by statute. Unless those rights are expressly, or by necessary implication, excluded by the alternative claim, or controlled an obligation to elect or by time limits, the beneficiary of the statutory right can pursue any, or all, or no entitlements. (at 134-135).

320 The respondent's approach in the present matter may be compared with a similar approach dealt with by the Court of Appeal in Incitec Ltd and anor v Industrial Court of New South Wales and ors (1992) 45 IR 155. In that case staff employees sought relief under s 88f of the Industrial Arbitration Act in relation to redundancy which was met by a submission that relief in relation to that matter was excluded by the special provisions dealing with redundancy under the Employment Protection Act. Gleeson CJ at 157-158 dealt with the issue in the following way: The question is ultimately one of construction. Having regard to the presence of particular legislative provisions relating to employment protection and redundancy payments, should Parliament be taken to have evinced an intention that the general provisions of s 88F may not be invoked in order to obtain relief where the substance of an employee's complaint against an employer relates to a matter concerning entitlements on termination of a contract of employment? Both Hill J and the Full Court of the Industrial Court answered that question in the negative substantially for two reasons, both of which are, in my view, correct. In the first place, it is erroneous to treat s 88F, on the one hand, and the legislative provisions relating to employment protection on the other, as being, respectively, a general power subject to limitation and conditions, and a special power within the meaning of the principles stated above. They are, rather, two quite different powers, although in a practical sense there may be overlapping in their respective areas of potential operation. Section 88F is concerned with alleged unfairness or harshness or unconscionability of individual contracts of employment. The focus of attention is the contractual relationship between a particular employer and employee. The Employment Protection legislation, concerned, as it is, with the matter of awards and industrial agreements, directs attention to more general industrial issues. Hill J said, in his judgment at first instance (Barry v Incitec Ltd (1991) 45 IR at 146): On the other hand s 88F of the Act deals with the matter of what for present purposes may be briefly described as unfair contracts. It applies to a contract or arrangement between the particular persons who are party thereto. Unfairness may arise either from the terms of the contract itself, the surrounding circumstances, and /or from the manner of performance or operation of the contract. The section deals largely with private rights inter partes. Despite that a general and relevant industrial prescription governing benefits payable to employees in termination of employment situations may exist, unfairness in relation to a particular contract of employment may nevertheless arise in a situation of redundancy or termination of employment for reasons unrelated to or not relevant to the basis of award prescription of an objective and fair general standard of redundancy or severance benefits. It may arise simply in the special circumstances of and surrounding the particular contract. The fact that Parliament has, in employment protection legislation, dealt in a particular way with disputes about redundancy payments, arising in certain defined circumstances, and between certain classes of employer and employee, does not require or justify a construction of s 88F which treats the subject of termination entitlements as being outside the scope of the power which is given by that section to remedy contractual unfairness.

321 The orders that are proposed in this matter arise from contractual unconscionability or unfairness, treating the contract in the extended sense as defined in s 105 of the Act. It is the unfairness arising from the conduct of the respondent which gives rise to the two proposed primary orders for the payment of money. I am unable to accept the proposition that the provisions of the Workers Compensation Act identified by the respondent were intended to have the effect of impinging upon these orders proposed to be made under s 106 of the Industrial Relations Act.

322 It follows from the discussion above that there is no impediment to the orders proposed to be made in favour of the applicant. The applicant is to receive payment of nine months' salary calculated by reference to his annual salary as it stood at December 1999 and an amount which I determine to be $12,500, in relation to stress and suffering arising in the course of the applicant's employment. Having in mind that the employment relationship has concluded, it would be appropriate to declare the contract void from February 1997 except to the extent of any and all payments made to the applicant. The applicant is also entitled to an order for the payment of interest and an order for costs which should ordinarily follow the event. Interest should be paid in accordance with the provisions of the Supreme Court Act and rules from 1 March 1999 in relation to the amount being the equivalent of nine months salary - such a period being appropriate having regard to the period during which Mr Banas was not paid. Interest on the sum of $12,500 for stress, pain and suffering should run from 1 February 1999 (following the report of Dr Fischer dated 13 January 1999) until 1 December 1999, by which time the applicant obtained settled work with the Australian Taxation Office. There may be matters which the respondent wishes to be heard on in relation to costs and I propose to deal with those matters, if any, when the applicant provides Short Minutes of Order to reflect the terms of this judgment. The matter will be stood over to a mutually suitable time to permit those steps to be taken. oo00oo

APPENDIX RE: MEMORANDUM NO 96-5: MANAGING DISPLACED EMPLOYEES

This memorandum explains the arrangement for "managing displaced employees in all public sector organisations". Some of the key features of the policy were stated to be:

· an emphasis on redeployment; · voluntary redundancy, where redeployment is not practicable · full and appropriate consultative arrangements with unions; · details of the services to be provided to all displaced employees, including counselling and training services; This memorandum was signed by the Premier and was issued by the Public Employment Office on 20 February 1996.

The Premier's memorandum was then followed by a Foreword from Mr Crisps - the Commissioner for Corrective Services also dated 20 February 1996. In this document it was stated that the Public Employment Office was committed to ensuring continuous improvement in the performance of public sector organisations in the State. The Government had indicated that there would be no forced redundancies and that every effort should be made to redeploy displaced employees in the organisation. A "displaced employee" was a person whose position/job no longer existed due to a restructure or other administrative decision, including where the position/job was moved to a substantially different work location. Redeployment was described as the principal means for managing displaced employees whose position/jobs had been deleted. A displaced employee could be redeployed to a position/job within their existing organisation or another organisation. It was stated that "in certain circumstances voluntary redundancy may be offered to displaced employees where it is considered that redeployment is not viable in a reasonable period of time". Further, it was stated that voluntary redundancy would be offered only in cases where:

· A facility is to close, and/or functions associated with the position/job at a facility are discontinued; or · Restructuring within an organisation has resulted in a loss of position/job. There were necessary additions to these points, namely: · the organisation, the Workforce Management Centre and the relevant unions must consider impractical to retain the displaced employees for the purposes of redeployment and the knowledge and skills relevant to deleted positions/jobs are not in demand by public organisations; and · full consultation between the relevant Minister, organisation Workforce Management Centre (WMC) and relevant unions has been completed and the Minister approved of a course of action. It was also stated that voluntary redundancy focuses on the positions/jobs affected and not individual employees although the policy sought to assist the employee. Further, in special circumstances, a more "general programme" of voluntary redundancies could be agreed by the parties (meaning the relevant Minister, the organisation, the WMC and the relevant unions). The memorandum then states: The circumstances that may lead to voluntary redundancy are accepted to be where the parties agree that redeployment is not likely to be viable in a reasonable period of time Attention was drawn to the fact that the policy included a number of important changes to the previous voluntary redundancy arrangements, particularly in relation to access, information on entitlements, provision of assistance to those who take the package and notice provision. The broad approval process for voluntary redundancy was described in the following way:

· full consultation between the Chief Executive of the organisation and relevant unions on the positions/jobs affected; · advice from WMC to the organisation on the potential redeployment in the NSW public sector in a reasonable period of time; · voluntary redundancy programme recommendations to the relevant Minister where WMC advises that redeployment is not viable. Ideally, this should be supported by the relevant union; and · Minister's approval to proceed.

Key features of any voluntary redundancy implementation programme was said to include that all displaced, or potentially displaced, employees had access to the following:

· information sessions; · professional vocational and personal counselling throughout the process; · interpreters and appropriate/bi-lingual information; · ensure that line managers play an effective role throughout the process; and · clear communication on entitlements and services that are available. The document was described as an arrangement with the unions through the Labor Council of New South Wales. The WMC, Labor Council and the public sector unions were said to be committed to the effective implementation of the policy and that they would "monitor these arrangements to ensure their fair and equitable application". The policy memorandum continued: The document emphasises the importance of decisions taken during restructure being balanced and fair to customers, public employees and the community as a whole.

Commissioner Crisps concluded his Foreword by encouraging managers to use the services of the Public Employment Office and in particular the WMC in the management of displaced employees.

Under the heading "Policy on Managing Displaced Employees" was a policy statement. In the first paragraph the policy stated that where changes resulted in public employees becoming displaced "… the government is most conscious of its responsibilities as an employer and its wider social objectives in relation to the community". The policy statement continued: The government is committed to ensuring that public employees are well prepared for employment changes resulting from restructuring and other administrative priorities of public organisations. It values and recognises that employees possess skills, experience and attributes which may be used in many parts of the public sector. Decisions in relation to displaced employees are to be based on professional management practice, systematic restructuring processes as well as merit and equity principles. … Redeployment to a suitable position/job elsewhere in the public sector whenever suitable and sufficient vacancies exist, or are expected to exist in a reasonable period of time. This may involve placement in the position/job of different classification or grade with a slight differential in salary (as a guide 5 per cent or one grade) or a lower salary. Displaced employees who are excess and redeployed to a position with a lower salary are entitled to salary maintenance for a period of 12 months or such other period as approved by the Public Employment Office. Voluntary redundancy can only apply whenever it is not expected that displaced employee(s) can be redeployed. Voluntary redundancy must be a genuine choice of those employees accepting offers. … A choice for employees when redeploying or voluntary redundancy may be approved, by the relevant Minister and the Public Employment Office in circumstances where it is know that not all of the displaced employees are able to be placed in vacancies and some genuinely sect (sic) voluntary redundancy. … Displaced employees will be kept fully informed of redeployment opportunities, the likelihood of a reduction in salary after the period of salary maintenance and the possibility of an offer of voluntary redundancy.

The policy statement said that in order to facilitate the redeployment of employees who decline an offer of voluntary redundancy, the organisation should consider the possibility of those employees exchanging positions/jobs with others who are not affected but have indicated they would accept voluntary redundancy. The Workplace Management Centre was "available to assist with redeployment between organisations".

Under the heading "Decision Making" the policy continued: Decisions on numbers and deployment of employees should be reached through a systematic process that takes account of the organisation's current and future plans and functions, budget, customer service delivery obligations, flexible employment options and good employment practice. Good employment practice involves focusing on all of the employee's skills, not just those which are currently recognised or utilised. When assessing strategies for reducing numbers of employees, organisations should consider the viability of a range of options including nature attrition, limiting recruitment and the introduction of flexible working practices such as part-time work, job share, part-time leave without pay and part new employment.

It was stated that before any decision was made about skills or competencies needed and the retention and separation of excess employees, organisations should ensure that the requirements of the New South Wales Charter of Principles for a Culturally Diverse Society for delivery of appropriate services were met and that equal employment opportunity groups were not disproportionately affected and that the decision should not be made on the basis of age, sex, pregnancy, marital status, disability, race or ethnicity; further, "outcomes are fair and management of people is sensitive to the pressures of change on public employees and their families". Finally, it was stated that unsatisfactory performance or allegations of unsatisfactory, or poor, performance were not grounds for declaring employees excess of displacing employees.

Under the heading "Redeployment" the policy states: Displaced employees often possess job skills required by organisations. Permanent employees are available to be placed in positions/jobs. … displaced employees may be redeployed within the organisation or to another public sector organisation at the same pay rate, or to a lower pay rate. Slight pay differentials are not an impediment. Where redeployment to a lower rate of pay, salary maintenance applies for a period of 12 months or such other periods approved by the Public Employment Office. However, wherever possible, a displaced employee should be redeployed to a position of equivalent grade and salary.

Displaced employees may be placed in any suitable vacancy without advertising.

Displaced employees who are excess are considered before other applications for advertised vacancies against the criteria of whether the employee: meets the essential requirements for the position/job, and/or can perform adequately or is likely to perform adequately in the position/job in a reasonable period of time, given access to a appropriate training.

The onus is on the selecting organisation to show why the excess employee cannot meet the criteria. A displaced employee, or a union on their behalf, has an opportunity to present further information to the Workforce Management Centre on the possibility of a redeployment between organisations where an assessment has been made that the individual is not redeployable to a position. Where more than one displaced employee declared excess is seeking redeployment to the same vacancy, selection is on merit. While the emphasis is on placement of permanent employees in position/job the WMC can arrange immediate trial placement of displaced employees declared excess for periods up to three months after which time the organisation may appoint them without the need to advertise. If the placement is not satisfactory to the organisation, the employee becomes available for other placements where this assists with the employee's chances of redeployment to a position/job. The employee and WMC are to be advised of the employee's progress on an agreed basis during the trial period. This is to ensure that appropriate training and/or development requirements for the employee may be implemented and the employee's progress during the trial can be properly monitored. The employee, and Workforce Management Centre, must be informed in writing, why the trial is not satisfactory. Displaced employees who are not yet declared excess to the needs of their organisation, pending consideration of suitable placement within the organisation, also may be given priority consideration for vacancy. This will occur when no excess employee has sought to be redeployed to the position. Displaced employees must: · make themselves available to be considered for redeployment to a vacancy; and · accept reasonable redeployment opportunities on existing salary. Organisations must:

s facilitate redeployment action; and s release employees immediately for redeployment opportunities."

Under the heading "Finalisation of displaced employee/redeployment actions" the policy states: Redeployment is a partnership between the: s individual employees; s employing organisations; s prospective employing organisations; and s Workforce Management Centre

Each carries a responsibility in the redeployment process. In all instances the primary responsibilities for redeployment rest with the individual and the employing organisation. Experience shows that most redeployment occurs within the existing employing organisation. The WMC can facilitate redeployment across organisations as opportunities arise. The WMC will continuously review the situation of each displaced employee who has been declared excess.

… the employee has a responsibility to participate fully in the redeployment process. While there is no prescribed maximum period of redeployment (formerly six months), employees will need to consider their circumstances in the context of the availability of work, limits to salary maintenance and the availability of voluntary redundancy. Voluntary redundancy requires WMC concurrence and the relevant Minister's approval. 6.

Under the heading "Displaced employees - process steps", the policy states: The displaced employee process should incorporate the following:

1. Organisations are required to consult, and as far as possible reach agreement with the relevant unions on appropriate services and service providers, for displaced employees in the organisation prior to implementation. The WMC is available to assist in this process.

2. Displaced employees are to be informed in writing by the organisation that their positions have been deleted and of the available services; and s that they may be redeployed, within the organisation, or to another organisation, with the relevant salary maintenance entitlements, and other applicable conditions; or s where approved, invited to express an interest in voluntary redundancy. An offer of voluntary redundancy must be accepted within two weeks for the additional payment of up to 8 weeks, provided that access has been given to appropriate services; …

The Chief Executives notify the WMC of employees who elect redeployment at .2 as well as implements immediate action to redeploy within the organisation.

All Chief Executives and the WMC are to co-operate in redeploying employees as quickly as possible both within and across organisations.

While there is no prescribed maximum period of redeployment (formerly 6 months), the employee will need to consider their circumstances in the context of the availability of work, limits to salary maintenance and the availability of voluntary redundancy.

Where redeployment proves not to be practicable, the Chief Executive should with the concurrence of the WMC and approval of the Minister offer the employee voluntary redundancy.

The contents of the voluntary redundancy package were set out as Appendix A to the Memorandum. Appendix A spoke of two packages designed to assist in managing displaced employees, being the coordinated redeployment package and the voluntary redundancy package. Under the coordinated redeployment package, where displaced employees are to be redeployed they are entitled to assist in seeking alternative employment or additional training to develop knowledge and skills which are required by public organisations. Under this heading, the following statement was made: Organisations must ensure that assistance provided as part of the co-ordinated redeployment package incorporates, as appropriate for each employee, the following: access to professional vocational counselling regarding career transition, training opportunities and occupational information; access to stress management counselling; placement in programmes to upgrade existing skills or acquire new skills, including payment of compulsory fees, training allowances, books and equipment; assistance with job placement; and assistance with trade/skills certification. … Primary responsibility for redeployment assistance rests with the employing organisation. The WMC facilitates redeployment between organisations. The individual is responsible for maintaining a pro-active job search." 7. Appendix A deals with the "Voluntary redundancy package", and under the heading "Eligibility" provides: Where approved, displaced employees are eligible for an offer of voluntary redundancy by the organisation except the following: … · employees on workers compensation whose claim is based on compensation for termination (unless the agreement of the workers compensation insurer is obtained to an separation payment being made) or others awaiting determination of claims against the employer for termination of services; and · employees in relation to whom action is in train to terminate their services. 8. Under the heading "Voluntary Redundancy Payments" the Appendix states that where employees accept voluntary redundancy they are entitled to payments that are set out which included the following:

Four weeks notice or payment in lieu; plus an additional one week's notice or pay in lieu for employees aged 45 years and over, with five or more years of completed service; plus

severance pay at the rate of 2 weeks per year of continuous service with a maximum of 26 weeks; plus

the benefit allowance as a contributor to a retirement fund; plus

pro rata annual leave loading in respect of leave accrued at the date of termination.

Further, employees who accept an offer of voluntary redundancy within 2 weeks of the offer being made and terminate employment within a time nominated by the employer will be entitled to additional payments, namely:

For three years' service and over, 8 weeks pay. 9. On 2 October 1997, the Public Sector Management Office issued from the Premier's Department, Memorandum No 97-27 which was headed "Managing displaced employees". The memorandum was directed to all Ministers and Chief Executives. The memorandum stated that the Budget Committee of Cabinet had approved changes to the voluntary redundancy package to assist organisations with the management of employees displaced by restructures and other administrative priority. Some of the changes modified the Premier's memorandum 96-5 entitled "Managing displaced employees" in relation to payments to be made under the voluntary redundancy package. The voluntary redundancy package increased severance payment to 3 weeks per year to a maximum of 13 years resulting in an increased maximum voluntary package from 39 weeks to 52 weeks. The memorandum went on to note as follows: In addition, while not part of the voluntary redundancy package, an option is now available to organisations, as appropriate, to assist employees to accept voluntary redundancy to look for work while still employed with the organisation by providing a period of up to 12 weeks job search leave. The detail of Job Search Leave was set out in Attachment 1 of the Memorandum.

10. Attachment 1, under the heading "Job Search Leave" provided follows: Job Search Leave is not part of the voluntary redundancy package. It is an option available to organisations, where appropriate, to assist those employees who have accepted an offer of voluntary redundancy to seek employment outside the NSW public sector during their remaining period of employment with their organisation. Up to 12 weeks' paid leave may be offered to these employees and during this period the employee would continue to receive their normal pay while they actively sought employment outside of the New South Wales public sector. Conditions applying to Job Search Leave: Job Search leave is available only to employees who have accepted an offer of voluntary redundancy and the day that their separation from the organisation has been agreed in writing. It is a concession only available to those employees who are actively seeking alternative employment outside the New South Wales public sector. The following conditions apply: · the period of job search leave is up to 12 weeks and can only be taken in one block; · the employee is still regarded as being in service and will continue to accrue annual leave and extended leave for the actual period of job search leave taken; · the leave is paid fortnightly, at the employer's substantive rate, excluding any overtime. … · if the employee obtains and commences another job during the period of job search leave, the employee should advise the organisation in writing and the period of leave shall cease from the date that the employee commences in the new job; · once job search leave has commenced, neither the organisation nor the employee can withdraw the offer or the acceptance of voluntary redundancy; · the employee, prior to proceeding on job search leave, is to sign an undertaking which sets out the conditions applying to job search leave, details and acceptance of the offer of voluntary redundancy, the last day of service and the commencement date of job search leave." 11. On 1 August 1998, the Premier issued Memorandum No 98-24 which was headed "Managing displaced employees - relocation of employees to available work". The memorandum, which was directed to all Ministers, stated that the Public Service Association and the Public Employment Office had recently negotiated a settlement for salary increases to staff covered by the Crown Employees (Public Sector - Salaries June 1997) Award. A number of initiatives were agreed to in a Memorandum of Understanding, one of which was directed to the relocation of employees to available work. It was stated that the agreed provisions had been developed to assist public sector agencies in the implementation of organisational change programmes and in the management of displaced employees. Provision had been made in this agreement for flexibility in placing employees, in particular displaced employees, in case of where work is no longer available at a particular metropolitan or rural location. It was stated that in some way the parties had agreed: effective service delivery required that work be located in areas to meet community demands; the employer can require an employee to relocate to available work, should work cease to be available at their current work location;

the job at the new location may be similar to the work previously performed or different to that previously performed by the employee at their existing salary;

in any case, the employee should possess the qualifications required for the other job and the work assigned to the other job if appropriate to that salary;

where the work is different, the employee will receive necessary support including staff development to perform the role; … it is expected that displaced employees within the Sydney metropolitan area may be required to transfer to suitable available positions elsewhere in the metropolitan area; … employees should not however be relocated if they have a valid reason for refusing a transfer; … these provisions are consistent with Sections 50 - 53 of the Public Sector Management Act 1988.

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