mixed. Claim for unfair dismissal upheld. Compensation for loss assessed at seven months' remuneration but limited by statutory cap to six months; award made to applicant. Claims for implied contractual...
Key principles
Where payment in lieu of notice is not permitted by the contract, a subsequent payment of money does not change the nature of a summary dismissal; the employer bears the...
A dismissal will be unfair where the employer exercises the right to dismiss in a harsh or oppressive manner; failure to consult and effecting termination without proper notice...
An employee alleging entitlement to an implied contractual redundancy payment must prove sufficient facts to justify implying such a term; absent such evidence an implied...
In assessing compensation for unfair dismissal the Commission must establish a causal link between the dismissal and the loss/injury claimed, place the employee as nearly as...
Issues before the court
Was the termination of Mr Quartermaine's employment a summary dismissal or a bona fide redundancy?
Was the dismissal harsh, oppressive or unfair under the statutory test?
Plain English Summary
The Commission found that Mr Quartermaine was summarily dismissed on 19 July 2000; the employer's claim that the termination was a bona fide redundancy was not proved. The dismissal was judged harsh and oppressive, entitling the applicant to compensation. The Commission assessed loss (including lost redundancy) equivalent to seven months' pay but awarded the statutory maximum of six months after accounting for mitigation. Claims for an implied redundancy payment and for a longer notice term were rejected for lack of evidence.
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Deep Dive
1,792 words · generated 13/07/2026
What happened
Mark Murray Quartermaine was employed by Anson Management Services Pty Ltd from February 1998, promoted to an Associate Director role in the professional/permanent recruitment division, and participated in management responsibilities (see findings about promotion and role in [14]–[16]). Documents and minutes produced at the hearing (notably the organisational chart at the management meeting of 14 July 2000, Exhibit MQ13A) placed the applicant within the structure for the 2000/01 financial year.
Is there an implied contractual term entitling the applicant to a redundancy payment or an expanded notice period (eg 12 months)?
What compensation should be awarded and how should mitigation be assessed?
Cited legislation
2 cited instruments linked from this judgment.
On 18 July 2000 the applicant met with managing director Mr Anson, during which he was told equity participation would not be available and that management prospects were limited. He was offered a consultant role and understood that a colleague (Mr Stibbs) was being treated similarly (the evidence suggests that was not correct) ([9]–[10]). On 19 July 2000 Mr Quartermaine was presented with a redundancy offer, asked to sign a release for the redundancy payment (Exhibit MQ14), rejected the offer and, according to his evidence and other contemporaneous material, left employment that day. Mr Anson told Mr Stibbs he “had to let Mr Quartermaine go” ([10]). Payment in lieu of notice was deposited into the applicant’s bank account on 21 July 2000 (Exhibit MQ18).
The applicant contended the dismissal was summary, harsh, oppressive and unfair and claimed compensation up to the statutory maximum, together with alternative claims for an implied reasonable notice period (argued as 12 months) and an implied redundancy payment (six months). The respondent contended there was a bona fide redundancy arising from a legitimate restructuring, that dismissal was not unfair, and that mitigation and impending redundancy limited any compensation.
The Commission accepted the applicant’s and Mr Stibbs’ account of the organisational structure and rejected the respondent’s account that the applicant should have known his position was redundant ([6]–[7]). The Commission concluded the termination was a summary dismissal (payment in lieu did not alter that character), the respondent failed to discharge the onus of proving a bona fide redundancy, and the dismissal was exercised in a harsh and oppressive manner ([11]–[12]). Primary relief (reinstatement) was impractical. Compensation for loss was assessed (loss of redundancy payment and unemployment) totalling seven months’ remuneration but limited by the statutory cap to six months ([14]–[15]). Claims for implied contractual redundancy and for implied extended notice were dismissed ([17]–[18]). Non-pecuniary injury damages beyond ordinary distress were not awarded for lack of expert evidence ([16]).
Why the court decided this way
Three threads drove the Commission’s reasoning.
Fact-based assessment of the employer’s asserted redundancy:
The Commission gave weight to contemporaneous documentary evidence (minutes and organisational charts) and the consistent evidence of the applicant and a colleague as to the structure as at 14 July 2000 (Exhibit MQ13A), finding that the applicant’s role was recognised in the proposed structure ([15]–[16], [6], [7]). The respondent’s reliance on a broad “management model” as justifying a non-hierarchical restructuring was rejected as insufficient to rebut the documentary record ([6]).
Legal characterisation of the termination:
The Commission applied the principle (articulated in the cited FMWU authority) that payment in lieu of notice will not convert a summary dismissal into a fair or lawful dismissal where such payment is not authorised by the contract; where the termination is a summary dismissal the employer bears the onus of proving justification for that dismissal. Applying that principle to the circumstances, and finding no bona fide redundancy, the Commission concluded the termination was a summary dismissal, with the evidentiary onus on the respondent to justify it ([11]).
Unfairness assessed against standards of consultation and manner of dismissal:
Contemporary standards require employee consultation in restructurings and redundancies. The Commission found that the dismissal was effected without proper consultation and in a manner that was harsh and oppressive: summary termination while the employee intended to travel, pressure through a settlement form and an immediate expectation to leave that day ([9]–[11]). The result was an abuse of the dismissal power by the employer, hence unfair dismissal.
On remedies, the Commission applied established compensation principles (citing Bogunovich) requiring causation between dismissal and claimed loss, placing the employee in the position they would have occupied absent the unfair dismissal, and requiring mitigation. The Commission accepted some failure to mitigate (the applicant did not vigorously pursue local consultancy or alternative roles) and therefore adjusted the compensation, while also applying the statutory cap ([7], [13]–[15]).
Finally, regarding contractual claims, the Commission emphasised the high threshold for implying terms into contracts; nothing in the evidence justified implying a redundancy payment or extending the contractual notice term ([17]–[18]). The decision in Fryer was treated as inapplicable to the statutory and contractual context of this case.
Before and after state of the law
Before this decision:
Principles concerning unfair dismissal, bona fide redundancy and the process of consultation were established in industrial jurisprudence. The Commission’s task was well delineated: determine whether dismissal was harsh, oppressive or unfair; assess loss causally; and ensure mitigation and statutory caps were observed.
After this decision:
The decision reinforces core propositions:
Documentary contemporaneous records (minutes, organisational charts) are persuasive in assessing whether a role continued to exist at the material time.
Employers who rely on redundancy to justify summary termination carry the evidentiary onus to establish bona fides; a post-termination payment does not alter the legal nature of a summary dismissal if the contract did not permit payment in lieu.
Lack of consultation and abrupt termination will readily found a finding of harsh or oppressive dismissal for senior employees where restructuring is asserted without clear, contemporaneous proof.
Attempts to obtain redundancy-like entitlements by implying terms into the contract, in the absence of express provisions or clear factual foundation, will fail.
The case therefore reaffirms and applies established lines of authority (including FMWU, Bogunovich) to the facts of late-notice restructuring and summary termination.
Key passages with plain-English translation
"Here the circumstances of the contract of employment lead to the conclusion that as a matter of fact and of the law the termination was a summary dismissal." ([11])
Translation: The way this dismissal was carried out, no prior contractual basis for payment in lieu, no notice or consultation, means legally it was a dismissal without proper notice, not a genuine redundancy.
"It follows that the evidentiary onus is on the Respondent to establish that the summary dismissal was justified." ([11])
Translation: Because this looks like a summary dismissal, it is the employer's job to prove it was lawful and justified, for example by proving there truly was a redundancy.
"In all of the circumstances the right to dismiss was exercised in a harsh and oppressive manner." ([12])
Translation: On balance, the way the employer used the power to dismiss the employee was unfair and constituted an abuse of that power.
"Compensation for loss is calculated to be an amount equivalent to the applicant's level of remuneration for 7 months... The statutory cap limits this to 6 months." ([15])
Translation: The Commission’s assessment of lost earnings and redundancy equalled seven months' pay, but the law caps awards, so the applicant receives six months' pay.
"In recognising the Applicant's loss... it cannot be the case that another entitlement can thereby be implied into the contract..." ([17])
Translation: Finding that the employee suffered loss does not allow the Commission to invent or imply new contractual rights (such as a redundancy clause) that were never agreed.
"As to the claim for injury... there is no such evidence." ([16])
Translation: The applicant did not produce expert or medical evidence to show severe psychological or physical injury from the dismissal; ordinary distress associated with job loss was not enough for an extra award.
What fact patterns trigger this precedent
This decision is most directly applicable where:
An employer restructures and claims redundancy as the reason for terminating an employee, but contemporaneous organisational documentation suggests the employee’s role remains in the restructured chart.
Termination occurs abruptly, without meaningful consultation, or in circumstances where the employee had no notice the role was redundant.
The employer offers a redundancy or pays money contemporaneously or shortly after dismissal but cannot point to contractual authority or prior communication to validate payment in lieu of notice.
The employee is senior or specialised, alleges loss of redundancy payment and loss of earning capacity, and the Commission must evaluate mitigation efforts and non-pecuniary injury.
Practitioners should look for contemporaneous minutes, memos, and organisational charts to rebut or support redundancy claims. Lack of those documents or evidence of consultation will favour the applicant under this reasoning.
How later courts have treated it
This decision applies established Commission principles (notably those in Bogunovich and the FMWU authority). As an Industrial Relations Commission decision, it functions as persuasive precedent in later WAIRC matters and for tribunals applying similar statutory frameworks. The judgment's practical emphases, documentary proof of redundancy, the evidentiary onus on the employer, the limited scope for implying contractual redundancy entitlements, and the need for expert evidence to justify significant non-pecuniary awards, are consistent with prevailing industrial jurisprudence. Users should check subsequent WAIRC and appellate decisions for any refinement of the approach to implied terms and to the assessment of mitigation, and for any statutory changes affecting caps or remedies.
Still-open questions
Exact calibration of consultation requirements for senior versus junior roles:
The decision enunciates the need for consultation, but does not set a detailed standard as to what level or form of consultation is required in complex restructures; later cases may refine whether private discussions suffice or whether broader documented consultation is necessary.
Interaction between management model/organisational philosophy and documentary charts:
The Commission rejected elevating a 'management model' over concrete charts. When is a philosophical reorganisation enough to defeat a chart? This remains context-dependent.
Threshold for implying redundancy entitlements:
This decision refused to imply redundancy payment. However, the precise factual matrix that might justify implication (for senior executives who had recurring practice of redundancy payments or explicit negotiations about redundancy) is open and must be established in evidence.
Measure and proof of mitigation in niche labour markets:
The Commission reduced compensation for partial failure to mitigate. Determining what counts as reasonable mitigation in specialised fields (where opportunities are scarce) will continue to be fact-sensitive.
Non-pecuniary injury quantification without expert evidence:
The decision follows authority requiring expert proof for significant awards. Whether tribunals may accept lay evidence in exceptional circumstances remains an area for future adjudication.
Practitioners should therefore rely on direct contemporaneous documentary evidence and clear proof of consultation when framing redundancy decisions, and when litigating should be prepared to address mitigation and non-pecuniary injury with concrete factual and expert material.
Judgment (14 paragraphs)
[1]
Mark Murray Quartermaine v Anson Management Services Pty Ltd [2001] WAIRComm 3083 (21 June 2001)
The Applicant, Mr Quartermaine, was employed in an executive position with the Respondent company. The business is presently involved in personnel recruitment in a specified field, financial services and in career coaching. However, at the time of Mr Quartermaine's employment the latter service was being undertaken by a separate entity, Careerlife Pty Ltd.
On 19th July 2000 Mr Quartermaine's services were terminated by Mr S. Anson, a joint owner and managing director of the company.
The Applicant submits that he was summarily dismissed from employment and that the termination was harsh, oppressive or unfair. Mr Quartermaine claims compensation for loss and injury arising from the dismissal. Furthermore, he claims in addition or alternatively a reasonable period of notice and a redundancy payment as outstanding contractual entitlements. In the absence of re-employment or reinstatement being practical the Applicant claims that his loss and injury arising from the dismissal exhausts the statutory limit of compensation under the Industrial Relations Act 1979 as amended. As to the contractual entitlements it is submitted that given Mr Quartermaine's senior position in the respondent company the period of reasonable notice to be implied under the contract is 12 months. The amount claimed as a reasonable redundancy payment is put at an amount equal to six months salary.
Mr Quartermaine's base annual salary was approximately $75,000. With commission and superannuation it was said by the respondent to be about $125,000 for 1999 - 2000.
The Applicant argues that the claims for compensation and contractual entitlements are mutually exclusive.
The Respondent confronts these claims on the basis that the Applicant's services were terminated in the circumstances of a genuine redundancy, the genesis of which was discussed with Mr Quartermaine. So too was the restructuring of the organisation. It is claimed that arising from this there was no role for him in the company.
It is submitted that in the circumstances of the bona fide redundancy the dismissal was not harsh, oppressive or unfair.
Even if it was to be found to have been unfair, it is submitted that the Applicant failed to mitigate his loss not seeking employment in the local market between 19th July 2000 and January 2001. Furthermore, the Respondent contends that any compensation for loss should be minimal on the basis that the Applicant would have become redundant in any event within a very short period of time.
[8]
Exhibit H dated 7th June 2000, reference to study material for a forthcoming day session.
[9]
Exhibit G operating model referred to at meeting 13th June 2000
[10]
Exhibit MQ12 Management meeting 19th June 2000, managing director's reference to the need to move to this model with "proactive strategies".
[11]
Exhibit J Management meeting 26th June 2000, managing director provides meeting with copies of model as a new focus and emphasises the importance of it for the company. (Note: the minutes record that "no proposals or ratification or agreed actions were stated" with respect to the discussion on this operating model.)
[12]
Management meetings over the period from 7th April 2000 to 14 July 2000 (see Exhibits B, D, E, G, MQ12, J, MQ7, L and MQ13A) refer to organisational charts being proposed, being amended and being discussed in the context of providing recognition of status, of providing tangible career paths and of establishing operational divisions within the company.
The notes of the management meeting of 10th July (Exhibit L) identifies the organisational structure Mr Anson wanted incorporated into the agenda. This structure sets out Mr Quartermaine's position as "Mngr, Associate Director, Perms" (i.e. Manager, Associate Directors Permanent Recruitment). There are three officers under his line of authority. The organisational structure is identified as being for the 2000/01 financial year.
Exhibit MQ13A, minutes of management meeting of 14th July 2000 confirms the accuracy of Exhibit L (the meeting four days earlier) and notifies changes to the organisational structure the establishment of "a contracting division with the same structure as the perm (i.e. permanent qualified division) but with the team leader position unfilled..."
On Mr Quartermaine's evidence this meant an expanded role for him under the restructure. He would direct a support function for permanent placements.
Indeed it was Mr Stibbs' understanding that the organisational structure anticipated Mr Quartermaine devolving some of his recruitment responsibilities and becoming more involved in improving the quality of the Respondent company's recruitment placements. On Mr Stibbs evidence Mr Anson had expected this to happen later in the year i.e. November/December 2000.
The cogency of the evidence provided by Mr Quartermaine and Mr Stibbs about organisational structures and the applicant's role is in marked distinction to that provided for the respondent company by Mr Anson. On the one hand is documentary evidence of a multiplicity of changes to organisational charts that finally and definitively establishes Mr Quartermaine within the structure for July 2000/01 financial year as at 14th July 2000 (see Exhibit MQ13A). Against this is Mr Anson's assertion that a particular management model was the driving force in realigning the company to achieve a non-hierarchical structure. In my view there is little to support this claim. It is as Mr Stibbs commented. The management model was a philosophical stance on how the company was going to position itself in the market place. There was no discussion in terms of the structure of the organisation or a strategy on how that would unfold. It cannot be elevated in importance under the guise of the change from a commission salary structure to a set salary regime.
[13]
"One consideration is that it depends whether such payment is permissible. That in turn depends on the contract and its construction (see Macken JJ, McCarry, G and Sappideen, C "The Law of Employment, 3rd edition pages 170 - 172). In some industries, also, it might be said to be a custom. If then, a payment in lieu of notice were not provided for in the contract, then proper notice has to be given or there is summary dismissal. The same would apply if there were no custom or usage. It follows that a summary dismissal as a matter of fact and law, cannot be altered in its nature by payment in lieu of notice."
[14]
Here the circumstances of the contract of employment lead to the conclusion that as a matter of fact and of the law the termination was a summary dismissal. It follows that the evidentiary onus is on the Respondent to establish that the summary dismissal was justified. In the absence of the evidence of a bona fide redundancy that onus has not been discharged. While a wrongful dismissal is not for that reason necessarily an unfair dismissal it is nevertheless unlikely that the dismissal will be other than unfair where it is determined that the employer has wrongfully used it's power to dismiss an employee summarily (RRIA v ADSTE (1987) WAIG 1104 at 1106). Nonetheless the test is not whether there has been an unlawful or wrongful dismissal but whether the dismissal has been harsh, oppressive or unfair in all of the circumstances. The Commission is required to decide whether the Respondent exercised its right to dismiss the Applicant so harshly or oppressively towards him as to amount to an abuse of that right.
There is no doubting the Respondent's prerogative to deny equity participation in the enterprise. Also there is no right of veto vested in an employee or the Commission to prevent or to in some way limit a company's objective to effect a restructure which may give rise to redundancies. However, contemporary standards demand that employees be consulted. Also if the business is experiencing financial difficulties and remedial action is necessary that would be taken into account. If it is the case that an employee refuses to cooperate with management in implementing new strategies or policies that is a factor to be considered in testing the harshness or oppressiveness of the dismissal.
While Mr Stibbs alluded to some difficulties between Mr Anson and Mr Quartermaine these were based on his own perceptions, they were not issues upon which evidence was presented for the Respondent company.
It is the case that the Applicant occupied a senior position in the Respondents business and that he made a significant contribution to the growth of the venture. On all of the evidence the Applicant was an enthusiastic and dedicated employee.
In all of the circumstances the right to dismiss was exercised in a harsh and oppressive manner.
Claim for unfair dismissal upheld. Compensation for loss assessed at seven months' remuneration but limited by statutory cap to six months; award made to applicant. Claims for implied contractual redundancy payment and for an implied longer notice period dismissed. Reinstatement rejected as impractical.
As to the matter of injury it was submitted that some degree of distress is experienced in most cases of redundancy. It is almost an unavoidable consequence. In the circumstances nothing was done to embarrass or humiliate Mr Quartermaine in front of other staff and as such there should be no entitlement on this ground.
There is no provision within the contract of employment that gives rise to payment for redundancy. The onus is on the Applicant to produce evidence sufficient to imply a term entitling him to a payment. In the Respondent's view that has not been established.
Finally on the issue of reasonable notice, it is argued that the Applicant was employed pursuant to a contract which contained an express term as to notice. It is not an easy burden to discharge to establish an implication that the parties agreed to vary that term. Other aspects of the contract were amended in writing. However, nothing was done with respect to the existing term of notice. It is submitted that there was insufficient evidence for this to be displaced in favour of a notional reasonable period of notice.
The fundamental issue between the parties is whether or not there was a genuine redundancy that precipitated the termination of Mr Quartermaine's employment. Questions then arise about the manner of the termination of employment. Was it summary dismissal as the Applicant asserts or did it flow from a redundancy but in circumstances where the parties subsequently failed to come to an agreement on the Applicant's continuing employment in a different role?
Mr Quartermaine commenced employment with the Respondent company in February 1998 under a contract for three months. In May that year he accepted permanent full time employment as a consultant with the Respondent. Mr Quartermaine has a Bachelor of Business and is a chartered accountant. He had previously worked as a chartered accountant in Perth before going overseas where he worked in his profession.
In the 1999 - 2000 financial year the Respondent company grew by some 45% - 50% based on revenue generated from placements. This growth was reflected in expanding numbers of staff and in Mr Quartermaine's changing role within the company. He was involved with consulting for permanent placements in the professionally qualified division of the company and lead the team in that area. Mr Quartermaine was also involved in managing the quality of recruits and putting in place procedures to secure the company standards in effecting personnel for placement. A colleague, Mr S Stibbs, had also commenced as a consultant and had moved into business development with the Respondent company.
The expanding roles of Mr Quartermaine and Mr Stibbs were recognised with their appointments as Associate Directors of the Respondent company. It is clear that this was a promotion within the structure of the Respondent company. As Mr Stibbs stated in evidence, their elevation to Associate Directorship of the company recognised the day-to-day responsibilities both employees exercised and the ownership they had in securing budget outcomes and the efficient management of the operation. This was necessary particularly as Mr Anson was involved in establishing a new venture Careerlife and from April 1999 had not been located in the same premises as the Respondent company. That is not to say that Mr Anson did not have an ongoing involvement in the Respondent company's operation. He remained managing director and monitored its financial wellbeing.
Mr Quartermaine's position as associate director was recognised by way of a remuneration package and a particular role description document (Exhibit MQ5). It is also clear that an appointment as associate director gave rise to expectations that the next step was an interest in the business. This was raised by Mr Quartermaine and Mr Stibbs from time to time with Mr Anson in the course of management meetings. Those notes recorded that as far the managing director was concerned it was inappropriate to discuss the issue of equity participation in that forum.
The minutes of management meetings tendered in these proceedings by both parties are accepted as a true record of what was discussed and the decisions taken at the time. In addition to the issue of equity participation, various memos from Mr Anson to Mr Quartermaine and to Mr Stibbs and minutes of managers meetings record the managing director's interest in promoting an appreciation of a particular management model:
I accept the evidence of Mr Quartermaine and Mr Stibbs that established the organisational structure that existed on 14th July 2000 in the respondent company and reject the claim by the Respondent company that there had been significant discussions to which Mr Quartermaine had contributed on the structure of the organisation and that as a senior member of staff he should have known that his position was redundant. Up to 18th July 2000 when Mr Quartermaine met with Mr Anson on the understanding that he was participating in a salary review, the prospect of redundancies generally or his position in particular had not been mentioned either privately to him or at a management meeting.
It is worth noting that the notes of the management meeting dated 10th July 2000 reflect a change in Mr Stibbs' role within the structure. This is stated by Mr Anson to be "...in line with informal discussions that have taken place..." Indeed it is clear that Mr Anson had already clarified Mr Stibbs' position with him about a week or so before Mr Anson saw Mr Quartermaine on 18th July. When Mr Stibbs and Mr Anson spoke, Mr Stibbs was told that there might be some difficulty fitting Mr Quartermaine into the structure. This was not raised at the meeting on 14th July. Mr Stibbs had been directed to maintain confidentiality.
At the meeting between Mr Anson and Mr Quartermaine on 18th July after informing the applicant that equity participation was not going to be available to him and that there were no prospects for a management role, Mr Anson offered Mr Quartermaine a position as consultant. I reject any inference that the initiative for that position came from Mr Quartermaine or out of some exploratory discussion between them. I also reject the claim by Mr Anson that he was open to explore other possibilities with Mr Quartermaine. The applicant's acceptance of the position was unexpected. I accept that in the conversation Mr Anson gave Mr Quartermaine to understand that Mr Stibbs was also being offered redundancy (see Exhibit MQ16). This was not the case and it is difficult to conclude that this was not merely a ploy to entice the applicant into accepting the situation.
When Mr Quartermaine and Mr Anson met on 19th July the applicant expected that they would discuss the salary in the light of his position in accepting an appointment as consultant. He was presented with an offer of redundancy and a new organisational structure. The redundancy payment was conditional on Mr Quartermaine signing a statement to the effect that monies paid were in full and final settlement for services provided to the company (Exhibit MQ14). It is Mr Anson's position that after rejecting the redundancy offer it was agreed that Mr Quartermaine would finish up that day. The applicant's written response to the offer does not indicate that to be the case (see Exhibit MQ16). In it he notes that he is leaving to go overseas the next day and will consider his options when he returns to work on 21st August 2000. In his evidence Mr Quartermaine stated that Mr Anson had said that his contract had been terminated and that there were no other positions for him. Mr Anson told Mr Stibbs in a telephone call on 19th July that he "had to let Mr Quartermaine go". I conclude that Mr Quartermaine's services were terminated.
The reasons for the termination of Mr Quartermaine's employment do not result from a bona fide redundancy. His positions as Associate Director Permanent Placements existed as at 14th July 2000. All that changed between then and sometime up to 19th July 2000 when Mr Anson wanted to end the employment relationship. Although the termination was executed on the premise of a redundancy it was done without notice and without consultation. Although payment in lieu of notice was subsequently deposited into the applicant's bank account on 21st July 2000 the question as to whether there was a summary dismissal is one of mixed fact and law. In FMWU v Cat Welfare Society (1991) 71 WAIG 2014 at 2019 the Honourable President and Gregor, C noted:
I accept that primary relief of re-employment or reinstatements is not practical given the break down in the relationship and the course of action Mr Quartermaine has taken to secure employment.
The principles which apply to assessing compensation have been set out in detail by the Honourable President in Bogunovich v Bayside Western Australia Pty Ltd (1999) 79 WAIG 8. Without reciting those principles in detail, it is encumbent upon the Commission to make findings as to the loss and/or injury which the employee suffered by reason of the dismissal. There must be a causal link between the loss and/or injury claimed and the termination of employment. The employee is required to establish his/her loss (and suffering) on the balance of probabilities. The employee is to be placed in the same situation as he/she would have been had she/he not been unfairly dismissed. Subject to the statutory limit specified by s. 23A(4) of the Industrial Relations Act (as amended) an applicant who has been found to have been unfairly dismissed is to be compensated to the fullest extent in respect of such loss or injury. It is an error to take into account conduct of an employee or employer is making a finding as to loss or injury. Such matters are not relevant. It is the employee's duty to mitigate the loss and/or injury.
The applicant submits that the period of unemployment following the unfair dismissal is almost six months. Although he has secured employment, the position is in the United Kingdom. He asserts that the loss suffered will continue as his salary of 30 000 pound sterling in considerably less than was his level of remuneration while employed with the respondent company. It is also submitted that while it might have been possible to obtain consultancy work in Perth, the fact that he was out of work while looking for work was a considerable disadvantage in the specialised field. The number of management/senior consultancy positions is limited.
Furthermore it is argued that with the dismissal of Mr Quartermaine was denied the benefit of a reasonable redundancy payment (Capewell v Cadbury Schweppes Australia Ltd (1997) 78 WAIG 299 at 304). Mr Quartermaine had made an intense investment in his role with the Respondent company and that this should be recognised.
Evidence was provided on how Mr Quartermaine was forced to dispose of assets and extend a home mortgage to survive during the period of unemployment. The Respondent company concedes that it carries the onus of proving that the applicant failed to mitigate his loss. In this respect it contends that the Applicant failed to obtain suitable employment in the local market. Mr Quartermaine had pursued employment with Gerard Daniels but had aborted that possibility preferring to pursue employment in the United Kingdom. The Respondent claims that the applicant should have little difficulty obtaining alternative employment almost immediately. Mr Stibbs' experience is claimed to verify this. He was successful in securing employment almost immediately after leaving the Respondent.
As to the expectation of on-going employment, the Respondent submits that notwithstanding the finding that there was not a bona fide redundancy the prospect of restructuring was real. Mr Quartermaine would have been made redundant in the short term.
I accept Mr Quartermaine's loss of a redundancy payment and that the unfair dismissal caused a period of unemployment. His services were terminated in circumstances where he was about to depart on an overseas trip. His ability to cancel that would have incurred further financial loss. I accept Mr Quartermaine's evidence that notwithstanding the decision to shift from a commission based salary structure to set rates of remuneration in August 2000 (a decision which he supported), he was prepared to commit himself to the Respondent company even in the role of a consultant for a period of one to one and a half years.
However I accept that the Respondent company has discharged the onus of showing that Mr Quartermaine has not mitigated the loss to the extent expected. Although Mr Anson had suggested to him that he take the opportunity to pursue employment in the United Kingdom while Mr Quartermaine was on his trip, the possibility of attaining consultancy work in Perth was not followed through with vigour. Also, as a chartered accountant Mr Quartermaine was not limited to the field of senior consultancy/recruitment manager in attempting to mitigate his loss while he sought employment overseas.
Given the status of Mr Quartermaine's position I assess the loss of redundancy payment at the rate of four (4) months salary. Taking into account the issue of mitigation I consider that the period of unemployment based on the balance of probabilities to be three months. In this assessment I have had regard for Mr Stibbs' experience and the range of skills available to Mr Quartermaine.
Compensation for loss is calculated to be an amount equivalent to the applicant's level of remuneration for 7 months at the time of the unfair dismissal. The statutory cap limits this to 6 months.
As to the claim for injury arising from the termination it is recognised that there is an element of distress associated with almost all terminations of employment. In Timms v Phillips Engineering Pty Ltd (1999) WAIG 1318 at 1326 it is noted that in most cases where loss of dignity, anxiety, humiliation or stress have been recognised as injury for the purpose of compensation the physical and/or emotional manifestations of injury have been attested to by professional experts. In this case there is no such evidence. Mr Quartermaine is a relatively young man. He appears to have overcome the set back that the circumstances of this matter presented. In my view his experience does not fall outside the limits of which generally can be taken to have been associated with a harsh or oppressive dismissal. The matter was primarily confined to the discussion between Mr Quartermaine and Mr Anson.
In recognising the Applicant's loss occasioned by the failure to receive a redundancy payment it cannot be the case that another entitlement can thereby be implied into the contract of employment to provide for the same entitlement under Section 29(1)(b)(ii) of the Act. I do not see the decision in Fryer v System Services Pty Ltd (1995) 137 ALR 321 dealing as it does with Sections 170DE and 170CE of the Industrial Relations Act 1988 as relevant to this matter. This aspect of the claim is dismissed.
On the issue of a term being implied to displace the contractual provision this too is rejected.
The determination of compensation is unaffected by the payment to the Applicant effected by the Respondent on 21st July 2000 (Exhibit MQ18).