Notification under section 130 by Construction, Forestry, Mining and Energy Union (New South Wales Branch) of a dispute with Pasminco Broken Hill Mines re Dismissals [2002] NSWIRComm 300

Industrial Relations Commission (NSW)|1995-03-21|Before: Sams DP, Hungerford J, Cullen J

CITATION : Notification under section 130 by Construction, Forestry, Mining and Energy Union (New South Wales Branch) of a dispute with Pasminco Broken Hill Mines re Dismissals [2002] NSWIRComm 300 NOTIFIER: PARTIES : Construction, Forestry, Mining and Energy Union (New South Wales Branch) RESPONDENT: Pasminco Limited (Administrator Appointed) FILE NUMBER: 2410 of 2002 CORAM: Sams DP Industrial dispute - mining industry in Broken Hill - threatened dismissals - actual dismissals - employees unfit for any duties - workers' compensation - whether rehabilitation offered - mine sold - employees denied redundancy benefits - respondent's policies and procedures - orders sought for reinstatement - whether reinstatement a futility - whether an order can be made - whether s137(3) applies - award sought in the alternative - Special Case - whether Total and Permanent Incapacity benefit taken into account - overpayment of workers' compensation. CATCHWORDS : Held, evidence not in dispute - reasonable expectation that mine would be sold - employees promised redundancy - undue haste in making decision - past flexibility of policy not applied - rehabilitation or light duties not the issue - employees totally unfit for any work - employees not treated fairly or equitably - jurisdiction to make an order - s137(3) not applicable - unnecessary for an award - TPI benefit not relevant - overpayment of workers' compensation may be taken into account - dispute determined by orders under s137(1)(b). Industrial Relations Act 1996 LEGISLATION CITED : Corporations Act 2001(Cth) Employment Protection Act 1982 Workers Compensation Act 1987 State Wage Case 2002, 114 IR 81 John Lysaght (Australia) Limited - Port Kembla - Slit Recoil Line - Rates of Pay Award (unreported, Hungerford J, Matter IRC2374 of 1994, 21 March 1995) Federated Ironworkers' Association of Australia and BHP Steel Sheet & Coil Products Division (unreported, Cullen J, Matter 1262 of 1991, 30 March 1992) Manuel and Others v Pasminco Cockle Creek Smelter Pty Ltd (1998) 83 IR 135 Queen v Industrial Commission of South Australia, ex parte Adelaide Milk Supply Co-operative Limited (1977) 16 SASR 6 Shop Distributive and Allied Employees' Association (NSW) v Countdown Stores, 7 IR 293 Re Clerks (State) Award (1987) 21 IR 29 Re Redundancy Awards (1984) 53 IR 419 CASES CITED : Termination, Change and Redundancy Case (1984) 8 IR 34 Construction, Forestry, Mining and Energy Union (New South Wales Branch) v Pasminco Broken Hill Mine Pty Limited (2001) 109 IR 75 Lend Lease Investments Pty Ltd and Ors: Re Cannon & Ors, 14 IR 301 Johns Perry Ltd, Edmunds Moir Division & Ors, Re Coombes & Ors (1986) 14 IR 322 Western Suburbs Ambulance Committee v Tipping [1957] AR 273 Retail Traders Association (NSW) v Shop Distributive and Allied Employees' Association (NSW Branch) (1990) 36 IR 38 Orange City Bowling Club v Federated Liquor and Allied Industries Employees' Union of Australia, New South Wales Branch (1979) AR 90 AWU v Pioneer Concrete (NSW) Pty Ltd, 38 IR 365 Perilya Broken Hill Limited Enterprise Agreement 2002 [2002] NSWIRComm 82 Jones v Dunkel (1959) 101 CLR 298 HEARING DATES: 07/25/2002; 07/26/2002; 08/09/2002 DATE OF JUDGMENT: 11/21/2002

NOTIFIER Mr A Bukarica Construction, Forestry, Mining and Energy Union, New South Wales Branch LEGAL REPRESENTATIVES: RESPONDENT Mr A Davies, Solicitor Blake Dawson Waldron

JUDGMENT: - 33 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: SAMS DP

Matter No IRC02/2410 NOTIFICATION UNDER SECTION 130 BY CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION (NEW SOUTH WALES BRANCH) OF A DISPUTE WITH PASMINCO BROKEN HILL MINES RE DISMISSALS

1 This is a dispute, pursuant to s130 of the Industrial Relations Act 1996 ("the Act"), between the Construction, Forestry, Mining and Energy Union, New South Wales Branch ("the notifier") and Pasminco Limited (Administrator Appointed) ("the respondent") filed on 30 April 2002. The dispute was the subject of compulsory conference proceedings via telephone conference to Broken Hill on three occasions from 8 May 2002 to 3 June 2002.

2 The dispute arose as a consequence of notice given by the respondent to two of its employees, Mr John O'Dwyer and Mr Trevor Hyde ("the employees"), that their employment would be terminated on 17 May 2002. The reason for the dismissals was that both employees were unable to return to work due to injury. During the compulsory conferences the respondent agreed to extend the date of dismissals by one week.

3 The resultant effect of the employees' dismissals was to deny them redundancy benefits that were paid to all employees when Perilya Pty Ltd purchased the Broken Hill Mine from Pasminco on 31 May 2002. Had the employees been working on site in any capacity at the time of the mine's sale, they would have been entitled to redundancy benefits according to Pasminco's redundancy arrangements. For both employees the amounts are significant - in Mr O'Dwyer's case $48,000 and in Mr Hyde's case $52,750.

4 I shall return to these matters in more detail later.

5 Notwithstanding attempts by the Commission to conciliate the matter, the dispute remained unresolved on 3 June 2002. On that day, I signed a certificate of attempted conciliation (s135) and forwarded such certificate to Wright J, President. In doing so, I listed the matter for arbitration in Broken Hill commencing on 25 July 2002.

6 It is convenient to mention at this juncture that as the respondent is in administration, its consent to the matter proceeding was required to be given under the Corporation Law. Mr Davies, for the respondent, did so on 3 June 2002.

7 During the course of the proceedings in Broken Hill, Mr A Bukarica, for the notifier, submitted that the arbitration of the dispute should result in an order of reinstatement of the two employees, pursuant to s137 of the Act, or in the alternative, an award be made by the Commission such as to ensure the employees are paid redundancy benefits that had been lost by reason of their dismissals.

8 In addition, on 26 July 2002 Mr Bukarica correctly, in my view, raised the question of whether the award sought falls for consideration under the Special Case Principle (Principle 10) of the State Wage Case 2002 Principles, 114 IR 81.

9 Accordingly, on 30 July 2002, I referred the matter to his Honour the President, pursuant to s193 of the Act and Principle 10 of the State Wage Case 2002 Principles.

10 The following day, his Honour determined as follows: Having considered the reference to the President of the Commission by Deputy President Sams in this matter dated 30 July 2002, I determine that these proceedings, including any Special Case aspect of them, are to be dealt with by Deputy President Sams.

11 The parties were informed accordingly. The advocates dealt with the Special Case considerations during submissions on 9 August 2002 in Sydney.

12 There was little factual contest between the parties - certainly nothing which impugned the credibility of the witnesses on both sides of the record. It follows then that I can arrive at an agreed background and chronology of events by reference to the evidence that was adduced by both parties.

13 I shall deal firstly with the respective employment histories of both employees:

14 Mr O'Dwyer was employed for eleven years as a miner in development. For the past three to four years he was a loader driver.

15 On 9 September 2001, Mr O'Dwyer injured his back whilst driving his loader. Two days later he consulted his doctor. He had been on workers' compensation since that time. Mr O'Dwyer has undergone a series of tests and treatments and associated physiotherapy.

16 The respondent's Employee Rehabilitation Co-ordinator, Mr Jeff Sullivan, wrote to Mr O'Dwyer on 18 December 2001. Mr Sullivan wished him a speedy recovery and offered the company's "full rehabilitation and welfare service". Mr Sullivan said he would contact him shortly and visited Mr O'Dwyer at home on 31 December 2001.

17 On 11 March 2002, after his twenty-sixth week off work, Mr O'Dwyer received a personally addressed letter from Mr Mark Hine (General Manager, NSW Mines) advising that all Broken Hill Mine employees would be made redundant after the sale of the mine to Perilya Pty Ltd had been completed. The letter said inter alia: … I am able to confirm that Pasminco will make all the current Broken Hill employees redundant on the completion date of the sale, and that all employee entitlements will be fully paid to all employees in accordance with their employment conditions.

18 On Tuesday 23 April 2002, Mr O'Dwyer attended a meeting with the respondent's management. Attending the meeting were Mr Peter Madden, Workers' Compensation Manager; Mr Neil Billington, Senior Claims Officer and Mr Sullivan. Mr Eddie Butcher, the union organiser was also in attendance.

19 Mr O'Dwyer was told that if he did not return to work in some capacity, his employment may be terminated. It was company policy to do so after twenty-six weeks off work, particularly as there was no prospect of Mr O'Dwyer returning to work, even on restricted duties.

20 Mr O'Dwyer said he was advised to talk to his doctor and take legal advice. He would be informed by the end of the next week about his ongoing employment.

21 Two days later, Mr O'Dwyer received a letter from the respondent (dated 24 April 2002) giving notice of his termination of employment on 17 May 2002. The letter invited Mr O'Dwyer to tell the respondent if he thought Pasminco was being unfair.

22 Mr Butcher sought a review of the decision in accordance with the respondent's Fair Treatment Policy. A review was undertaken. However, the decision was reaffirmed.

23 Mr Hyde commenced contract work for the respondent in 1990 and was made a permanent employee in 1993. His work involved truck and loader driving.

24 On 20 August 1996, Mr Hyde was injured at work. He underwent various medical treatments and physiotherapy, but remained at work performing light duties. He suffered a further injury to his knee on 24 May 2000 and another injury on 13 July 2001. Mr Hyde had been off work since the last injury. As a result of these injuries, Mr Hyde has undergone knee replacement surgery (8 March 2002). He takes daily medication and walks with the aid of a walking stick.

25 Mr Hyde was visited at home by Mr Sullivan about three months after he ceased work. They discussed the workplace accident and the extent of Mr Hyde's injuries.

26 Mr Sullivan visited him again on 31 December 2001. Mr Sullivan told Mr Hyde that after six months off, the respondent may take action to terminate his employment.

27 On 11 March 2002, Mr Hyde received the same letter from Mr Hine as was sent to all employees concerning the possible sale of the mine (see para 17).

28 Mr Sullivan visited Mr Hyde again in April and informed him to attend a meeting with management on 23 April. Those in attendance were referred to earlier in para 18. Like Mr O'Dwyer, Mr Hyde was informed that if he didn't return to work in some capacity his employment may be terminated. He was also advised to talk to his doctor and take legal advice.

29 The next day, Mr Sullivan visited Mr Hyde at home and delivered a letter which terminated his employment. Mr Butcher took up Mr Hyde's case and it was reviewed under the Fair Treatment Policy. However, the decision was reaffirmed.

30 It was brought to the Commission's notice, immediately prior to the witnesses being called to give evidence, that Mr O'Dwyer had secretly taped the meeting with the respondent on 23 April 2002. The existence of the tape was not made known to anyone up to that time, including Mr Butcher. When asked why he taped the meeting without informing anyone, Mr O'Dwyer said he was worried about his job and his livelihood.

31 An agreed transcript of the conversation recorded on the tape was prepared and admitted into evidence.

32 Mr O'Dwyer stated that when Mr Sullivan visited him on 31 December 2001, he was told that he needed to get back to some form of work if he was to be entitled to redundancy. Mr Sullivan had not offered him any rehabilitation.

33 Mr O'Dwyer gave evidence that he had been overpaid workers' compensation payments ($3,400), but the respondent was not seeking to have it paid back.

34 Mr O'Dwyer said he had been advised to lodge a Total and Permanent Incapacity claim (TPI) through the Pasminco Mine Pension Fund and had done so.

35 Mr Hyde gave evidence that, after his first accident in 1996, he remained at work. He said that while his doctor wanted him to take time off, he was in fear of losing employment. After constant representations to his supervisor he was provided with light duties. However, his salary dropped from $88,000 to $69,000. Mr Hyde believed he was unfit to work and said he hid the extent of his unfitness from his supervisor.

36 In reference to the respondent's redundancy package, Mr Hyde said that, even before receiving Mr Hine's letter of 11 March, he believed that redundancy was part of his working package should ever the mine be sold. He believed the redundancy package had been improved over the years in exchange for employees trading off conditions. However, he could not be specific about the details.

37 Mr Hyde said that in the 23 April meeting, Mr Peter Madden said that he had been appointed by Pasminco to come to Broken Hill to tidy up workers' compensation claims. During the meeting Mr Madden said he had been in touch with Mr Hyde's doctors who confirmed Mr Hyde could not return to work. This left the respondent with no option but to terminate his employment.

38 Mr Hyde gave oral evidence that he was heavily medicated at this meeting. He had told the meeting he could not stand for long periods, that he was worn out and couldn't perform any duties. Mr Hyde agreed he was told at the meeting that he would have to go back to work or miss out on redundancy. Mr Plush suggested that Mr Hyde should contact AMP and apply for a total and permanent disability benefit. Mr Hyde said he had already done so. Mr Hyde had been overpaid workers' compensation, but the respondent was not seeking its repayment ($11,921.10).

39 Mr Hyde believed he had not been offered a genuine offer of rehabilitation. He said Mr Sullivan had told him on 31 December 2001 that he was visiting injured workers in order to get them back to work. Mr Sullivan had recognised there was nothing much Mr Hyde could do. Mr Sullivan had told him he would get all of his entitlements if the mine was sold before his employment was terminated.

40 Mr Hyde said he and Mr O'Dwyer were the only employees who were denied redundancy packages. Other employees on workers' compensation for under six months had received all their entitlements. Mr Hyde had not been advised that his workers' compensations payments were to cease. He now had no job, no redundancy benefits, no workers' compensation and ongoing pain from his injuries. (It was agreed that his workers' compensation payments had now been restored).

41 Mr Hyde said he wanted to stay in Broken Hill with his family. He had not looked for a job because of his injuries.

42 Mr Butcher is the Secretary/President of the Construction, Forestry, Mining and Energy Union, New South Wales Branch - Western Division. He has been a union official in Broken Hill for twenty-two years. Mr Butcher deposed that he has an extensive knowledge of industrial agreements, practices and customs in Broken Hill and at the Pasminco mine, in particular. Mr Butcher has had an extensive involvement in all major industrial issues at the mine since 1988. He gave details of the redundancy benefits which applied at the time of the sale of the mine.

43 Mr Butcher said he has represented the interests of individual members in safety and workers' compensation issues since 1988 and has a sound understanding of the respondent's policies and practices in respect to these matters. Mr Butcher agreed that s15 of the 1998 Pasminco Mine Agreement provided for payment of workers' compensation benefits in accordance with the New South Wales Workers' Compensation Act.

44 Mr Butcher said the respondent's policy on workers' compensation was never rigidly applied. He was aware of a number of cases where individual workers were not dismissed after twenty-six weeks of workers' compensation. He believed the treatment of Mr Hyde and Mr O'Dwyer was inconsistent with the respondent's past flexible approach. The respondent's approach now was designed to deprive them of redundancy entitlements.

45 Mr Butcher said the respondent also had a flexible approach to what constituted "meaningful" work. He was aware of two injured mine workers who returned to work and carried out menial clerical tasks ("paper chasing"). Mr Plush had said that since 1998/99 the respondent had changed this practice. "Meaningful" work was now the basis for offering injured workers a return to work. However, Mr Butcher said there was no documentation concerning the change and the decision had never been conveyed to the Union.

46 Mr Plush's evidence was that other employees had been terminated when they were unable to return to work. However, Mr Butcher responded by claiming that, in these cases, there were no pending redundancies: whereas, in this case, all employees had been promised redundancy benefits.

47 Mr Butcher agreed that Mr Plush phoned him soon after the 23 April meeting and said words to the effect "if we can do anything to get him back to work, we just need to do something to get him back to work". Mr Butcher had replied that it was up to the employee's medical practitioner as to whether a return to work was possible.

48 Mr Terrence Plush had worked at the mine since 1980 - his last three years as Superintendent Human Resources. He was made redundant on the sale of the mine to Perilya.

49 In his role, Mr Plush was responsible for liaising with the Employee Rehabilitation Co-ordinator regarding progress and rehabilitation of injured workers in order for them to return to meaningful work where possible. He said ongoing employment issues were managed by the manager of production. The matter of termination of employment was Mr Hines's responsibility.

50 Mr Plush described the process involved in assisting injured employees to return to work, including on light duties. He said that after six months, if an employee was unable to return to work, the employee's employment may be terminated. This had happened in the past. Mr Plush cited two examples of Mr Morris and Mr Symonds who were terminated without redundancy benefits being paid.

51 In oral evidence, Mr Plush described the respondent's process as a "case by case" approach. He agreed some injured employees had remained employed beyond twenty-six weeks.

52 Mr Plush referred to Mr Hyde's and Mr O'Dwyer's particular circumstances and about which there is little controversy. Mr Plush wanted to stress that the respondent didn't really want to terminate their employment. Mr Plush had made approaches to Mr Butcher to see if the employees could get back to work. Mr Plush said Mr Hyde received an overpayment of $11,921.10 when he was paid his weekly wage rate after twenty-six weeks - and Mr O'Dwyer had similarly been overpaid $3,400.

53 Mr Plush referred to the meeting with Mr Hyde on 23 April 2002. For relevant purposes, while there is some disagreement about what was said at the meeting, it seems clear that Mr Hyde acknowledged he would be unable to return to work in the near future. Mr Plush said he told Mr Hyde that if he could not return to any form of work, the respondent would have no choice but to terminate his employment. This would mean he will not qualify for redundancy. Mr Butcher could not recall if the words "will not" were used.

54 Mr Plush said Mr Madden, as the main spokesperson for the respondent, had said in the meeting that Mr Hyde had been given additional time in order to see if he could come back to work (Mr Butcher disputes that this was said). Mr Madden said a letter would be sent to outline Mr Hyde's termination details. Mr Butcher said Mr Madden was never definite about Mr Hyde's termination of employment.

55 Mr Plush said Mr Hyde's benefit from the Pension Fund for a TPI claim was of the order of $44,630. Had Mr Hyde been made redundant, his redundancy payment would have totalled $52,750.

56 Mr Plush gave evidence of the meeting with Mr O'Dwyer on 23 April 2002. The transcript of the tape of the meeting does not materially differ from Mr Plush's recollection. As the tape is the best evidence, I shall rely on it.

57 Mr Madden referred to the medical report of Dr Chapman which described Mr O'Dwyer as totally unfit for work. Mr O'Dwyer said he would gladly come back to work if his injury didn't get worse. Mr Madden had said that once the "rehabilitation aspect is finished and your employment with Pasminco is terminated…".

58 Mr Plush had told the meeting that Mr O'Dwyer's twenty-six weeks expired on 7 March and "it's something we can't progress, you know, for much further". Mr Plush confirmed that if Mr O'Dwyer couldn't come back to work, and it was unlikely he would in the short term, "the company has no option but to terminate your services" and there would be no entitlement to redundancy. Mr O'Dwyer said "Yeah, I realise that".

59 The next significant extract from the tape transcript is at paras 117 and 118: Terri Plush What we'll do is, probably what we'll do is, we'll get a letter that's drafted up and we'll send it out to you. Sully will probably drop it out to you so then you've got that and then you can go and get yourself some legal advice you might want to talk to your doctor and then, then if you want you can come back, come back and have a talk to us. Whether that's through Eddie or whether you want to come back by yourself.

Peter Madden Basically what we'll be asking for or the Company will be asking for is by the end of, probably the end of next week they will want to make a determination about your employment. Mr Plush agreed that this conversation was said in both meetings with Mr Hyde and Mr O'Dwyer. Mr Madden had not been definite about termination of employment.

60 There is reference later in the discussion about the reduction in Mr O'Dwyer's workers' compensation weekly benefits.

61 Mr Plush said that Mr O'Dwyer's TPI benefit under the Pension Fund would be $56,743. Had Mr O'Dwyer been made redundant his redundancy entitlement would have been $48,000.

62 Mr Plush gave evidence about the review of the decision to terminate the employees. This was done under the respondent's Fair Treatment Policy. Those involved in the review included Mr Murphy, Divisional Human Resource Manager; Mr Mark Hine, General Manager; Mr Sullivan and himself. After reconsidering the decision in light of Mr O'Dwyer's and Mr Hyde's circumstances, it was decided the decision should not be changed.

63 During cross examination, Mr Bukarica tendered the respondent's Injury Management Program. Mr Plush was asked about the following extract: Within three working days after becoming aware of a significant injury to a worker, make contact with the worker and where reasonably practicable, the worker's treating doctor.

64 Mr Plush did not know if this contact was made with Mr Hyde or Mr O'Dwyer. Nor did he know if an injury management plan had been put in place for the employees. Mr Plush said that he and Mr Sullivan could not give detailed consideration to alternative duties for the employees because their doctors had certified them unfit for any duties.

65 Mr Plush was asked about Mr Madden's role at the 23 April meetings. He agreed Mr Madden was an outside consultant (employed by Richard Oliver International) appointed by the Administrator. Mr Plush did not accept that Mr Madden's role was to "clear the decks" as far as workers' compensation cases were concerned. Mr Plush said Mr Madden chaired the meeting and was there to cover any issues in regard to workers' compensation, including making decisions about overpayments, ongoing entitlements and future employment.

66 Mr Plush was asked about the sale of the mine to Perilya Pty Ltd. He said that on 8 March 2002, a sale contract had been signed, but the deal could have fallen over at any time up to the end of May. He agreed a big farewell party had been arranged for 31 May; that Perilya had established a recruitment office in March and that applications for positions with Perilya closed on April 26.

67 Mr Plush agreed that had Mr Hyde and Mr O'Dwyer remained employed for a further six days, they would have been eligible for redundancy benefits. Mr Plush had not wanted to see them denied the benefits. He did not accept that there was "real haste" in terminating Mr Hyde and Mr O'Dwyer. The issue had been raised six months earlier.

68 Ms Andrea Julia Grigg provided an affidavit, but was not required for cross examination. Ms Grigg was the respondent's claims officer and attended the meeting concerning Mr Hyde on 23 April 2002. She prepared a file note soon after the meeting. Ms Grigg generally supported the recollections of Mr Plush as to what was said at the meeting.

69 Specifically, Ms Grigg recalled Mr Plush informing Mr Hyde that he would miss out on redundancy if he didn't return to work and Mr Hyde responded by saying he couldn't come back to work. Ms Grigg couldn't recall if Mr Madden had enquired whether Mr Hyde's condition was a result of a football injury. Mr Sullivan had said that while Mr Hyde's doctor deemed him unfit "the company can't do anything" (about rehabilitation).

70 Mr Neil John Billington was employed for eighteen years as the respondent's Senior Claims Officer. He provided an affidavit, but was not required for cross examination. Mr Billington attended the meeting on 23 April concerning Mr O'Dwyer and prepared a file note soon after the meeting.

71 Mr Billington agreed with the effect of the conversations set out in Mr Plush's affidavit. He recalled that Mr Plush had said that a letter would be sent the next day regarding the company's decision. It had been indicated that the decision would be to terminate Mr O'Dwyer's employment.

72 Mr Billington generally agreed with Mr O'Dwyer's affidavit concerning the meeting, except to say that Mr O'Dwyer had made it very clear that he could not work in any positions because his back was too bad.

73 Mr Jeffrey Kenneth Sullivan was employed as the respondent's Employee Rehabilitation Co-ordinator for fourteen years and worked closely with Mr Plush. He described his role as follows: (a) Assisting injured workers to return to work as soon as possible;

(b) Initiating and maintaining contact with the injured employee's treating doctor;

(c) Co-ordinating and monitoring the return to work plans and injury management plans of injured employees; and (d) Maintaining and providing relevant company information for: i) the injured workers ii) the injured worker's Supervisor or Superintendent; iii) those involved in injury management/rehabilitation; and iv) the worker's compensation staff.

74 Mr Sullivan described the standard procedure for dealing with injured workers. Mr Sullivan said he couldn't undertake any rehabilitation functions while an employee remained totally unfit for work. When the employee was fit for alternate duties, he looked for ways to bring them back to the workplace. Nevertheless, he maintained contact with employees who were totally unfit for work. Mr Sullivan agreed that after twenty-six weeks, if no suitable employment is available on a permanent basis, the employee's employment may be terminated.

75 Mr Sullivan dealt with his involvement with Mr Hyde's case. He had visited Mr Hyde shortly after he was injured and dropped in periodically to pick up his doctor's certificates and deliver notes. Mr Sullivan said that Mr Hyde's doctors had indicated he had suffered a long term injury and it was unlikely that he would ever be able to return to work. As a result, Mr Sullivan said, he could not arrange any alternate duties.

76 Mr Sullivan said he visited Mr Hyde on 31 December 2001 and asked how he was doing. Mr Hyde had said he was still unable to function normally. Mr Sullivan said he had a list of people on WorkCover that he was trying to get back to work. He had told Mr Hyde that if he was still unfit for work after six months, the respondent may have to terminate his services and there would be no redundancy. Mr Sullivan said Mr Hyde replied that he understood and added he was still unfit and would have to "take whatever comes on the chin".

77 Mr Sullivan described Mr O'Dwyer's position as similar to Mr Hyde -although the company doctors had indicated Mr O'Dwyer may have been able to return to work on light duties. However, Mr O'Dwyer's own doctor's opinion was accepted. As a result, Mr Sullivan could not arrange any alternative duties for him.

78 Mr Sullivan said he dropped in periodically to see Mr O'Dwyer. Mr O'Dwyer told him he was not fit to return to work. Mr Sullivan visited Mr O'Dwyer on 31 December 2001. He expressed the same comments to him as he had to Mr Hyde. Mr O'Dwyer had said that he couldn't come back to work because it would aggravate his injury. He was in a lot of pain and taking medication. Mr Sullivan said Mr O'Dwyer added "so fuck 'em".

79 Mr Sullivan attended the two meetings on 23 April 2002. He agreed generally with Mr Plush's recollection of what was said. Both employees indicated that they were unable to return to work on any duties. Mr Sullivan said it had been made clear to them that if they were off work for longer than six months, and not able to return to some meaningful work, their services may be terminated and that they would be ineligible for redundancy.

80 The next day, Mr Sullivan delivered a letter to both Mr Hyde and Mr O'Dwyer regarding their termination of employment. Mr Sullivan said on the day before he was under the impression that he would be delivering the letters the following day. However, he wasn't sure if Mr Madden told him they were termination letters. Mr Sullivan agreed that when he delivered the letter to Mr Hyde he had said "Don't shoot the messenger" and that it wasn't his, or Mr Plush's decision. Mr Hyde said he was going to "screw" them all for all he could get. Mr Sullivan replied "Go for it mate, everybody else does" and wished him well.

81 Mr Bukarica asked Mr Sullivan if he contacted Mr Hyde and Mr O'Dwyer within three days of their injuries in accordance with the respondent's Injury Management Program. He said he couldn't be sure, but he doubted it was three months after. Mr Sullivan added that there was not much he could do if the employee was totally unfit. Mr Sullivan agreed he had not discussed a structured injury management plan with either employee, because until the employee is medically certified as fit for some work, there was nothing he could do.

82 Mr Sullivan agreed that Mr Madden's role in the process was to "straighten out" or "clearout" the workers' compensation section.

83 Mr Sullivan agreed that, as at 8 March 2002, he knew the mine was to be sold - but not exactly when. He said it was still unclear at 24 May, but agreed a farewell party had been organised for 31 May.

84 Mr Sullivan did not believe the employees were terminated to avoid paying redundancy pay. He had hoped to "plant a seed" in December 2001 that a return to work would ensure they received redundancy. Mr Sullivan emphasised it was not his decision to dismiss the employees. He was just "obeying orders". He said it was "bad luck" that they had missed out and he felt sorry for them.

85 Mr Bukarica opened his submissions by putting that this case can be addressed in two ways: by either applying technicalities and strict procedures, or on the basis of fairness and industrial equity. The latter, he said, should be the test.

86 This approach was consistent with the objects of the Act and the specific requirements of Pt 7 ch 2 dealing with the protection of injured workers. Mr Bukarica said that strictly speaking the respondent may have met all of its legal obligations to Mr Hyde and Mr O'Dwyer. But the Act requires employers "to go the extra mile" in protecting the interests of injured workers.

87 Mr Bukarica said that the two workers had thirty years' service between them. They have lived and worked in Broken Hill all their lives, they have dependent children and their employment options are limited. The effect of being deprived redundancy benefits was severe and unfair.

88 Mr Bukarica submitted that the Commission could take two alternative approaches in arriving at a conclusion of unfairness - either, that the respondent deliberately sought to deprive Mr Hyde and Mr O'Dwyer of redundancy payments or, alternatively, that the respondent applied too rigid and inflexible a test to it's procedures. Mr Bukarica referred to Mr Hines' letter to all employees of 8 March 2002 in which the respondent was clearly preparing employees for the sale of the mine and informing them that redundancy benefits would be paid.

89 In turning to the Union's evidence, Mr Bukarica said in respect to the injured employees that there was never any offer of rehabilitation. Their case management was perfunctory. Both employees had been willing to return to work, if only they had received a medical clearance to do so.

90 Mr Bukarica said that Mr Madden's role as an outside consultant hired by the administrator was significant. Mr O'Dwyer and Mr Hyde were two "inconveniences" that had to be cleared up before the mine's sale.

91 As to the 23 April meeting, Mr Bukarica said that while Mr Madden held out the strong prospect of termination of employment, vague and contradictory messages were given to the employees. They were given an opportunity to put further information to the respondent and had at least until the end of the following week to do so. However, they were both dismissed within twenty-four hours.

92 In any event, Mr Bukarica claimed that, while the respondent had a flexible policy in respect to the twenty-six week period, it had not responded flexibly to Mr Hyde or Mr O'Dwyer.

93 Mr Hyde had expressed his view of the unfairness of the respondent's actions. Mr Sullivan's own reactions demonstrated that there was a degree of unease within the respondent itself as to what had been decided about Mr Hyde and Mr O'Dwyer.

94 Mr Bukarica submitted that the respondent's witnesses gave conflicting evidence as to who was actually responsible within the management structure for dismissing the employees. Mr Sullivan agreed that Mr Madden had not been definite as to when, or if, the employees would be terminated. Mr Sullivan accepted the respondent's own rehabilitation policy was binding. The policy speaks of dismissal as an "extreme step".

95 Mr Bukarica said Mr Plush acknowledged that there was no formal record of change in the policy concerning "paper chasing" light duties.

96 Mr Plush acknowledged that a contract of sale for the mine was signed on 8 March and a planned party was to occur on 31 May. It was generally well known that the sale of the mine was imminent. Mr Bukarica said that a recruitment office had been set up and employees had been informed of their redundancy entitlements well before the sale.

97 Mr Bukarica said this demonstrated that there was an intention to terminate Mr Hyde and Mr O'Dwyer prior to 31 May so as to save the administrators a sum of around $100,000.

98 Mr Bukarica said the evidence disclosed the following: 1) From 8 March 2002 it was apparent the mine was to be sold. 2) The external consultant's role was to "clear the books" of outstanding workers' compensation cases. 3) No real rehabilitation was offered to the employees. The two employees were open to rehabilitation and light duties conditional upon medical advice.

A rigid approach was applied to Mr O'Dwyer and Mr Hyde as distinct to the traditional, flexible approach.

The employees were led to believe on 23 April 2002 that they could put further material to the respondent. However, they were sacked the next day.

The respondent acted unreasonably by not extending the employees' employment by one week.

99 As to the relief sought, Mr Bukarica submitted that two alternatives were proposed to achieve the same result. An order could be made and the parties could approach the matter in good faith, notwithstanding the provisions of s137(3) of the Act which prevented the payment of remuneration. However, Mr Bukarica stressed that it was only an order for reinstatement which was sought. Alternatively, an award could be made. The special case principle had been satisfied as these were special and unusual circumstances. There was no flow on implications.

100 Mr Davies provided detailed written submissions and addressed the following matters in reply to the submissions of Mr Bukarica.

101 There could be no rehabilitation plan and no rehabilitation as the employees' own doctors had certified them unfit for any duties. Mr Sullivan needed medical clearance before he could consider a return to work plan. The respondent had done everything possible to get them back to meaningful work. This was consistent with past practice and the respondent's injury management program.

102 Mr Davies said the employees were treated fairly according to a well known process in Broken Hill. The employees were on notice as early as December 2001 that, if they could not return to work, their employment would be in jeopardy. There were meetings involving the Union. The employees were invited to explain how the situation was unfair. They were given appropriate notice of termination and the date of dismissal was extended by a week.

103 Mr Davies said the evidence was that the sale of the mine to Perilya could have fallen through at any time.

104 The workers' compensation process was not designed to "clean out" the outstanding cases before the sale. "Clean out" in this context was to highlight the lack of resources to deal with the many cases. Mr Davies referred to Mr Madden's involvement in the process. He said Mr Madden was brought in because the respondent lacked workers' compensation resources. Mr Plush was the person dealing with employment matters.

105 Mr Davies then carefully addressed his submissions by reference to the relevant passages from the transcript.

106 Mr Davies submitted that the onus was on the applicant union to demonstrate that the respondent had acted unreasonably and to prove there was an industrial injustice. See John Lysaght (Australia) Limited - Port Kembla - Slit Recoil Line - Rates of Pay Award (unreported Hungerford J, Matter 2374 of 1994, 21 March 1995) and Federated Ironworkers' Association of Australia and BHP Steel Sheet & Coil Products Division (unreported Cullen J, Matter 1262 of 1991, 30 March 1992). Having regard for the relevant legislation, and test case decisions of the Commission, it was apparent that the termination decision was made on reasonable grounds in the ordinary course of employment.

107 Mr Davies put that the employees were, on their own evidence, entirely unfit for work. Doctor's certificates made it clear that the employees were unfit for any work and there was no evidence of an imminent return to work of any kind.

108 Both employees were given some four months' warning that, if they were unable to return to work in some capacity, their employment would be terminated. During this time they had ample opportunity to obtain medical and other advice or recover and recuperate to a point of being able to do some meaningful work. The employees knew the ramifications for their redundancy payments if they did not return to work.

109 Mr Davies submitted that the respondent had afforded procedural fairness to the employees. In addition to the warnings given about the consequences of not returning to work, the respondent met with both employees in the presence of their union official and were given an opportunity to place any additional matters before a decision was made by the respondent. There was an appeal process through the Fair Treatment Policy.

110 As to the alleged "paper chase" duties, Mr Davies said the evidence on this issue can be disregarded. The onus was on the employees to show they were capable of some meaningful work. They had never offered themselves for any work.

111 Mr Davies put that the employees were absent from work well in excess of six months. Other employees who had been off for six months had been dismissed and not paid redundancy benefits. The evidence was that the respondent's behaviour was consistent with its treatment of other employees.

112 There was no evidence that the employees were terminated to avoid redundancy payments. Mr Plush was very concerned about their situation and didn't want the terminations to occur. There was no evidence that the employees were "singled out". See Manuel and Others v Pasminco Cockle Creek Smelter Pty Ltd (1998) 83 IR 135.

113 Mr Davies submitted that in practical monetary terms the employees would be in a relatively similar position to other employees if their TPI payment is taken into account. This benefit is in addition to any workers' compensation benefits. Mr Hyde's TPI benefit would be $44,630 and Mr O'Dwyer's would be $56,743. An equivalent redundant employee would receive $53,750 and $48,000 respectively in redundancy payments. Account should also be taken of workers' compensation overpayments made of $11,921.10 to Mr Hyde and $3,400 to Mr O'Dwyer.

114 Mr Davies put comprehensive submissions, supported by relevant authorities, concerning the purpose of redundancy payments. See Queen v Industrial Commission of South Australia; ex parte Adelaide Milk Supply Co-operative Limited (1977) 16 SASR 6.

115 Mr Davies said that redundancy payments are generally seen to serve two purposes. Firstly, to compensate an employee for loss of employment and to assist in the period during displacement looking to regain employment (or for a period until the employee is properly seen as within the "social services network") (generally the view expressed in state decisions). Secondly, to compensate employees for loss of non-transferable credits - ie from ceasing employment with service with one employer, to commencing employment without a recognised period of service with another employer (expressed more often at a federal level).

116 Here the employees were not performing any job. They had not lost a job or transferable credits. This was not a redundancy situation. It was not unfair. See Shop Distributive and Allied Employees' Association (NSW) v Countdown Stores, 7 IR 293; Re Clerks (State) Award (1987) 21 IR 29; Re Redundancy Awards (1994) 53 IR 419 and Termination, Change and Redundancy Case (1984) 8 IR 34.

117 Mr Davies said the letter to both employees setting out their redundancy entitlements should be viewed in the context of general information to the workforce.

118 Mr Davies referred to the principles relating to reinstatement set out in Western Suburbs Ambulance Committee v Tipping [1957] AR 273: He said: a) The applicant has the onus of satisfying the Commission that it is right and just in all the circumstances to intervene;

b) intervention will only occur to prevent the unjust or unfair exercise of the employer's right of dismissal - rather than a decision that, if it had control of the business, it would have had a different opinion about what it would do;

c) an order of reinstatement will only be made in exceptional circumstances, and only if a strong case is made out justifying the employer to be so compelled.

119 Mr Davies said the employees were not really seeking reinstatement. These proceedings were a means to an end. Reinstatement cannot be notional or fictional. See Retail Traders Association (NSW) v Shop Distributive and Allied Employees' Association (NSW Branch) (1990) 36 IR 38. The orders sought are effectively an order for dismissal. Such an order cannot be made under s137 of the Act. Further, s137(3) does not permit the order of redundancy payments.

120 As to the Union's evidence, Mr Davies said that the Union brought no evidence to challenge Mr Plush or Mr Sullivan. Mr O'Dwyer and Mr Hyde agreed in large measure with the conversations in the meetings of 23 April 2002. Mr Butcher's evidence was hearsay or based on his own beliefs.

121 Finally, Mr Davies said, that no special case had been made out. The proposed order should be refused.

122 In reply, Mr Bukarica said this case was about fairness - whether it was fair that two out of 450 redundant employees should be denied redundancy benefits.

123 In an environment where the respondent had demonstrated a flexible approach and the mine was to be closed, this unfairness was clearly evident. However, somewhere in the process, the past practice of flexibility became rigid. Mr Bukarica was prepared to accept that Mr Plush and Mr Sullivan were acting in good faith.

124 Mr Bukarica readily accepted that the two alternative remedies sought by the Union were a means to an end. He said the order sought does not provide for redundancy pay and therefore is not in conflict with s137(3). He said the Commission has the power to make such an order. This was an extraordinary and special case.

125 Mr Davies submitted that reinstating the dismissed employees would constitute a fiction in that they would be reinstated to jobs that did not exist, do not exist and jobs they could not perform in any event. True it is that such an outcome might be construed as a notional reinstatement. However, I do not accept that reinstatement, in the unique circumstances of this case, would constitute a fiction in that it would serve no useful purpose. Indeed, Mr Davies' own submission, readily embraced by Mr Bukarica, is that reinstatement is sought for a purpose. He described it as a "means to an end" - namely, the entitlement of employees to redundancy benefits.

126 In Orange City Bowling Club v Federated Liquor and Allied Industries Employees' Union of Australia, New South Wales Branch (1979) AR 90 the Full Bench of the Industrial Commission in Court Session held that a reinstatement order could be made notwithstanding there was no vacancy available for the reinstated employee. The Full Bench said: Secondly, we do not consider it necessary that the words in question should be interpreted so as to exclude jurisdiction where no job vacancy is immediately available in the employer's establishment. Examples put forward by counsel to support such a proposition were (a), a case brought on behalf of an applicant for the position of managing director of a large company where only one such position exists and it is already filled, and (b), a case brought on behalf of an unemployed person who has applied at random to an employer for work in circumstances where no job has been advertised and where, in fact, no job vacancy exists. We make the comment, in the light of our not inconsiderable knowledge and experience of matters coming before this Commission and before conciliation commissioners and conciliation committees, that it is difficult to visualize such a case, in practice, being brought. Be that as it may, to restrict the meaning of the words so as to exclude jurisdiction where no immediate job vacancy exists would remove from what we regard as a legitimate province of the Commission's interest and concern a class of case which might well be quite substantial in nature.

127 In AWU v Pioneer Concrete (NSW) Pty Ltd 38 IR 365, Hill J said at 390: Mr Gallagher submitted that a reinstatement award in this case would be an "impossibility", that it would be a futility and, at best, notional or fictional, because the Bass Point works were closed. There was therefore no jurisdiction to award reinstatement. This argument, in my view, is not supported by Retail Traders' Association and seeks to press the reasoning and result in that case beyond its logical and acceptable limits. There is no impossibility in the circumstances of this case; nor would an award of reinstatement be futile, notional or fictional. Cahill V-P was dealing with a case involving the reinstatement of a dead person. The very statement of that proposition reveals the mutually exclusive concepts involved and the impossibility or futility inherent in it. The evidence in this case demonstrates, in my view, that an award of reinstatement or re-employment would be far from futile or impossible of compliance; it would be capable of having a real and effective operation. and at 391: It is true that Pioneer presently has no relevant vacancies for persons at the Bass Point Quarry. But Pioneer on the evidence has not ceased to be an employer within the meaning of the Act and it may well decide on review, to recommence operations at Bass Point. However, there is, in general, no duty on an employer to actually provide work to an employee if it chooses not to do so. Indeed in many cases for one reason or another it is unable to provide useful work for its employees; and it is not unusual that, in appropriate cases, the employer seeks and obtains a "stand-down" provision. and concluded at 392: In my view there is jurisdiction under s25 and/or under s31 to award reinstatement in this case; and, in my opinion, the issue concerns a class of case which is "quite substantial in nature" as was envisaged in Orange City Bowling Club .

128 It seems to me that if the Commission has the power to reinstate an employee where no vacancy exists, then surely there is the power to reinstate where no job exists, particularly in the context of the limited scope of the order which is sought here. If, in the result, particular obligations arise from the re-established employment relationship, then so be it. There is nothing remarkable about that.

129 I am of the view that there can be no real issue of the impracticality of the order here sought. To adopt the words of Hill J, reinstatement "would be far from futile or impossible of compliance; it would be capable of having a real and effective operation."

130 Reinstatement, to my mind, is about reconnecting the employment relationship between an employer and employee. However, it is not necessarily about restoring the employment relationship on exactly the same footing as it was at the point of dismissal. If this was not so, it seems to me that the power to order reinstatement "on such terms and conditions as the Commission determines" s89(8) would have no work to do.

131 Notwithstanding these observations, it also seems to me that the question is not really whether the employees can be reinstated to a job that no longer exists. It is obvious that at the time of dismissal the employees were not performing any work; in other words, they did not have a job. However, there most assuredly was an employment relationship. It is this relationship which reinstatement would restore.

132 During the course of argument, there was some suggestion that the orders sought by the Union might be ultra vires by virtue of s137(3) of the Act which is in these terms: A dispute order may not provide for the payment of compensation, lost remuneration or any other amount.

133 I would address this submission as follows. In my opinion, the prohibition on a dispute order providing for "compensation, lost remuneration or any other amount" cannot possibly mean a prohibition on payments made to a reinstated employee in the ordinary course of his/her employment and for which benefits and entitlements arise under a relevant industrial instrument or according to the terms of a contract of employment.

134 If the alternative was so, it would mean that a reinstated employee would be denied remuneration in the form of wages and other benefits. Such an outcome is plainly illogical and unfair.

135 In my judgement, the monetary prohibition in s137(3) is directly related to any additional compensation or remuneration extraneous to the ordinary payments made during the course of employment.

136 Viewed in this way, the redundancy benefits payable to Mr Hyde and Mr O'Dwyer, as a consequence of their reinstatement, would be payments made in the ordinary course of their employment, post their reinstatement.

137 I am satisfied therefore, that the Commission has the power to make an order of reinstatement in the circumstances of this dispute.

138 It follows then, that I do not find it necessary to make an award giving effect to the same outcome. As a corollary, it is also unnecessary to make a finding as to whether the proposed award complies with the Special Case Principle of the State Wage Case Principles 2002. I hasten to add nevertheless, that, had an award been the preferred vehicle for the relief sought, I have no doubt that the Special Case Principle was applicable and the onus for making out a special case has been satisfied.

139 Much attention was focused by Mr Bukarica on the willingness of the employees to undertake restricted duties and the failure of the respondent to offer any form of rehabilitation or light duties to the employees. I should say that I don't understand the logic of this criticism. It really is not the relevant issue to be decided.

140 All the medical reports indicate that the employees were unfit for duty and they had both sought a total and permanent incapacity payment through the Pension Fund. In these circumstances the question must arise, why would the company offer rehabilitation,when it had clear and unequivocal medical evidence that the employees were unfit for any duties and were themselves claiming to be totally and permanent incapacitated?

141 In my view, it doesn't really matter that the employees were prepared to work if their doctors gave them clearance to do so. The fact is that neither was given such clearance. The issue of willingness to work, including the so called "paper chase" duties, doesn't therefore arise. Nor, I hasten to add, does the failure of the respondent to offer alternative duties or rehabilitation.

142 By the receipt of the letters from Mr Hine on 11 March 2002, personally addressed as they were, and providing the individual employees' redundancy benefits, indicating that all employees would be made redundant at the completion of the mine sale to Perilya, the respondent had, in my opinion, every intention, at that time, to make Mr O'Dwyer and Mr Hyde redundant.

143 The letters were sent, notwithstanding that, in both cases, the employees had passed the twenty-sixth week of being off work and the respondent was in possession of information that both employees were unlikely to be able to return to work.

144 In my judgement, if there was any intention to deny the employees their redundancy benefits, it should have been made absolutely clear at this time. By failing to do so, the employees were left with a positive understanding that they would be treated no less favourably than every other Pasminco employee - even those who would be paid redundancy benefits, but who would continue working for the new owner or who were on workers' compensation for less than twenty-six weeks.

145 The Commission is particularly conscious of its obligations under s163(1)(c) of the Act "to act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms" and object (a) of the Act "to provide a framework for the conduct of industrial relations that is fair and just".

146 In my view, there was nothing fair and equitable about what the respondent subsequently did to Mr O'Dwyer and Mr Hyde. To my mind, it was a cruel and heartless decision to dismiss the employees six days shy of the sale completion.

147 Of course, I readily acknowledge that the sale of the mine to Perilya could have fallen through at any time. However, there was a widespread belief and expectation in the Broken Hill community that the mine would be sold. This expectation was fuelled by the following factors: 1) Mr Hine's letter of 11 March which revealed that a contract of sale with Perilya had been entered into on 8 March.

Perilya had set up a recruitment office in Broken Hill in late April.

Perilya had been negotiating the terms of an enterprise agreement with the Union which culminated in an application filed by Perilya in the Industrial Relations Commission of New South Wales on 16 April 2002 for the registration of an enterprise agreement. The agreement was ratified on 19 April in Matter IRC2172 of 2002.

148 In this context, the sale of the mine was all but a fait accompli and everyone knew it to be so.

149 Against this backdrop, I have serious reservations concerning the motivation behind the timing of the employees' dismissals. It was six days before the sale of the mine to Perilya. Had the employees remained in employment, even off work, then their redundancy entitlements would have been preserved and paid to them.

150 Mr Dwyer was off work from 9 September 2001 until his dismissal on 24 May 2002 - well in excess of twenty-six weeks. Mr Hyde was off work from 13 July 2001 until his dismissal on 24 May 2002, over ten months after his injury.

151 Added to these facts, there is clear evidence that the respondent had a flexible approach to retaining injured workers beyond the six months prescribed in the workers' compensation legislation. Mr Plush described it as a "case by case" approach. I make no criticism of this approach at all. Indeed, it is most commendable.

152 However, notwithstanding the company's history of flexibility on the twenty-six weeks, it most certainly wasn't extended for a further six days to give the employees an entitlement to redundancy benefits.

153 I do not accept Mr Davies' submission that both employees were put on notice in December 2001 that if they did not return to work in some capacity their employment would be terminated. This is contrary to the respondent's own evidence. Mr Sullivan said that he used the expression "may" and not "would". In my view, this is not mere semantics. The fact that the employees were not dismissed after twenty-six weeks, with their knowledge of the flexibility adopted by the respondent in the past and with the imminent closure of the mine, the employees may well have believed that termination was a possibility, but not a certainty.

154 Moreover, I am troubled by the indecent haste of the termination notices as demonstrated by the letters of termination dated the day after the 23 April meetings. These letters were sent, notwithstanding the employees were told that they would be advised in the following week and advised to take legal advice and see their doctor.

155 I refer here to what both Mr Plush and Mr Madden said in the Tuesday meeting (transcript of tape, paras 117-118): Terri Plush What we'll do is, probably what we'll do is, we'll get a letter that's drafted up and we'll send it out to you. Sully will probably drop it out to you so then you've got that and then you can go and get yourself some legal advice you might want to talk to your doctor and then, then if you want you can come back, come back and have a talk to us. Whether that's through Eddie or whether you want to come back by yourself. Peter Madden Basically what we'll be asking for or the Company will be asking for is by the end of, probably the end of next week they will want to make a determination about your employment.

156 How was it possible to obtain legal advice and see one's doctor by the next day? This was unrealistic and grossly unfair.

157 However, I am certain that in the 23 April meetings, there was no intention to act with such speedy resolve. Someone, unbeknown to me from the evidence, must have intervened to have the letters sent almost immediately. Was this fair, having regard for what the employees and Mr Butcher had been told? I hardly think so.

158 It is my view that this whole exercise was not driven by the respondent, but by the administrators. Mr Sullivan said Mr Madden was sent to "clean out" workers' compensation issues. Curiously, no one, other than the respondent's former managers gave evidence in the proceedings. Mr Madden was conspicuous by his absence, although I draw no Jones v Dunkel (1959) 101 CLR 298 inference by his failure to give evidence.

159 On the other hand, there was an attempt by the Union to discredit the respondent's witnesses by proving that the tape made by Mr O'Dwyer disclosed different conversations to those deposed to in the affidavit evidence.

160 Obviously, the tape is the best and conclusive evidence of what was actually said in the meeting. However, I can find no basis for an allegation that recollections of the respondent's witnesses were deliberately intended to omit relevant conversations or add words that were never said.

161 The Commission found Mr Sullivan and Mr Plush to be honest and sincere witnesses. I accept, in Mr Sullivan's words, that they were no more than "the messengers" and had absolutely no ill will or desire to unfairly treat Mr O'Dwyer or Mr Hyde.

162 Mr Davies argued that the two employees did not fit within the definition of a redundant employee in the context of the purpose of redundancy payments as decided by this Commission and other tribunals. See Shop Distributive and Allied Employees Association (NSW) v Countdown Stores; Re Clerks (State) Award (1987); Re Redundancy Awards (1994) and Termination, Change and Redundancy Case (1984).

163 With respect, this argument might have some weight if Pasminco employees who secured alternative employment with Perilya were also denied redundancy benefits. They plainly didn't. All employees, regardless of their financial standing, prospects for alternative employment or indeed, even if they had a seamless transfer to the new employer, were paid redundancy benefits. I cannot see how the exclusion made for Mr O'Dwyer and Mr Hyde applied fairly in these circumstances.

164 Mr Davies raised the matter of both employees having applied for a total and permanent disability payment from the pension fund. It was said that this payment would place them at no disadvantage compared to fit employees who received redundancy benefits of a similar monetary value.

165 I find little to commend this argument. Payments from a pension fund for a particular, and in this case catastrophic purpose, have nothing to do with the basis upon which redundancy benefits are paid generally, and more particularly, how the Pasminco redundancy benefits have evolved over the years. See Construction, Forestry, Mining and Energy Union (New South Wales Branch) v Pasminco Broken Hill Mine Pty Limited (2001) 109 IR 75.

166 It is a well held industrial principle that payments by an employer to an employee for one purpose, cannot be offset against payments made for a different purpose. The principle here advanced is not dissimilar to that which was discussed and decided by Fisher J, President, in Lend Lease Investments Pty Ltd and Ors: Re Cannon & Ors, 14 IR 301, where employers had sought to offset severance payments under the Employment Protection Act 1982 (NSW) by amounts paid for superannuation benefits. Fisher J rejected this approach and said: My general conclusion is that severance payments of the kind arising in these cases and occupational superannuation have separate social and industrial objectives. Many different types of payments are made under superannuation deeds. Payments that relate to retrenchment are capable of and do vary one from the other not only in calculation and amount, but also in their nature quality and purpose. Conceivably some superannuation payments could overlap with severance payments and there is also a question of degree. Superannuation payments could be made on such an extensive scale or upon such a wide formulation as to raise an implication that they do cover the total field. Similarly, severance pay under s14(1)(a) of the Act need not be of the kind being dealt with here. Severance payments can be defined to relieve various kinds of hardship or industrial or economic difficulties, technological displacement and company merger and reconstruction, to name only two. It would seem that only when the nature and purpose of payments of retrenchment pay under a superannuation deed can be seen to be in their essentials similarly definable, or are directed towards similar relief of the same kind of hardship as severance pay under the Act, that the prospect of double counting can arise. The Lend Lease payment known as "top-up" provides an illustration of a(sic) such similarity. On the other hand, an application arising under s14(1)(a) of the Act seeking compensation for the loss of lifetime employment could give rise to a form and extent of severance pay that could duplicate or considerably overlap with superannuation payments. His Honour's decision was confirmed on appeal. See Johns Perry Ltd, Edmunds Moir Division & Ors; Re Coombes & Ors (1986) 14 IR 322.

167 Before proceeding to make the appropriate orders, it is necessary to consider one final relevant issue raised by Mr Davies. That relates to the overpayment of workers' compensation benefits to both employees - to Mr Hyde and amount of $11,921.10 and to Mr O'Dwyer an amount of $3,400.

168 Mr Davies submitted that the Commission should take this matter into account. For the reasons I have early expressed about fairness and equity, I am persuaded by Mr Davies' submission in this regard.

169 Notwithstanding that the respondent indicated during the proceedings that it was not seeking the repayment of these amounts, I believe, should it feel inclined to do so, that it is entitled to set off any payments to employees by the overpaid amount. The order will provide accordingly.

170 The Commission intends to conclude this matter by making a dispute order of reinstatement pursuant to s137(1)(b) of the Act; the effect of which will be to reinstate Mr O'Dwyer and Mr Hyde to the date of the sale by Pasminco of it's Broken Hill Mine to Perilya Pty Ltd. In the result, both employees will become eligible for redundancy benefits in accordance with Pasminco's redundancy policy applicable at the time.

171 Pursuant to s137(1)(b) of the Industrial Relations Act 1996, the Commission orders that: 1) Pasminco Broken Hill Mine (Administrator Appointed) shall reinstate Mr John O'Dwyer and Mr Trevor Hyde to the positions they held at the time they were dismissed on 24 May 2002.

The employees shall remain employed until midnight, 31 May 2002.

Any benefits or remuneration received during the employees' period of employment shall be less an amount of $11,921.10 to Mr Hyde and $3,400 to Mr O'Dwyer.

This order shall take effect from today and remain in force for twenty-eight (28) days.

These compulsory conference proceedings are concluded.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

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