Outboard World v Muir

Industrial Relations Commission (NSW)|2000-06-09|Before: Sams DP, Mr J, Mr P

CITATION : Huseyin Arslan and others and Berkeley Challenge (Commercial) Pty Limited and Others [2001] NSWIRComm 45 APPLICANTS: Huseyin Arslan Marco Suazo Chandra Ruby Geyer Metin Niyazi Margaret Housbey PARTIES : Huseyin Chavush Frederick George Sheen Kay Hannel Mehmet Akdeniz Maria Barton

RESPONDENT: Berkeley Challenge (Commercial) Pty Limited and Others FILE NUMBER: 3509, 3510, 3511, 3512, 3513, 3514, 3515, 3516, 3517, 3518 of 2000 CORAM: Sams DP Termination of employment - redundancy due to loss of contract - contract cleaning industry - "ordinary and customary turnover of labour" - whether dismissals "harsh, unreasonable or unjust" - offers of reasonable alternative employment - procedural fairness - general principles. CATCHWORDS : Held, long serving employees unfairly treated - employer's obligations not met - failure to consult - failure to explore genuine alternative employment - failure to provide severance payments - failure to provide ancillary assistance - dismissals substantively and procedurally "harsh and unreasonable" - reinstatement impractical - compensatory relief appropriate - orders made. LEGISLATION CITED : Industrial Relations Act 1996 Re Application for Redundancy Awards (1994) 53 IR 419 Outboard World v Muir (1993) 51 IR 167 Aitken v Construction, Mining, Energy, Timberyards, Sawmills and Woodworkers Union of Australia - Western Australia Branch, CASES CITED : 63 IR 1 Budget Couriers Equity Management v Beshara (1993) 5 VIR 173 Quality Bakers of Australia v Goulding (1995) 60 IR 327 Shop Distributive and Allied Employees Association, New South Wales and W D & H O Wills (unreported) Sams DP, IRC3363 of 1999, 9 June 2000 Principles for Review of Awards - State Decision 1998, 85 IR 38 HEARING DATES: 11/27/2000; 12/13/2000 DATE OF JUDGMENT: 03/19/2001

APPLICANTS Mr J Pearce of Counsel SOLICITOR Mr P Adams LEGAL REPRESENTATIVES: Adams & Partners, Lawyers RESPONDENT Mr M Diamond Agent Ausgroup Consulting

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

and BERKELEY CHALLENGE (COMMERCIAL) PTY LIMITED AND OTHERS

Applications re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996

1 This arbitrated decision arises from ten applications filed by former employees of the Berkeley Challenge Group ("the respondent") who were employed at Penrith Plaza performing cleaning, customer service, security and car park services. All the applicants were dismissed on 30 June 2000, following the respondent's loss of the contract to provide a range of services at Penrith Plaza.

2 The applicants seek compensatory relief from alleged unfair dismissal, pursuant to s84 of the Industrial Relations Act 1996 ("the Act"). Each applicant was dismissed for the same reason and in the same set of circumstances, namely, the respondent's loss of the Penrith Plaza contract. Accordingly, the applications were joined, by consent, in conciliation proceedings on 4 August 2000. 3 Mr P Adams, Solicitor, appeared for the ten applicants and Mr M Diamond, Agent, represented the respondent. The respondent was variously named as Penrith Services Pty Ltd, Parramatta Services Pty Ltd, Berkeley Challenge (NSW) Pty Ltd and Berkeley Challenge (Commercial) Pty Ltd. Mr Diamond acknowledged the applicants had been employed by the Berkeley Challenge Group. The respondent's only witness, Mr Plarinos, describes himself as the regional manager for Berkeley Challenge Pty Ltd "the effective respondent herein". For convenience, I shall hereafter refer to the respondent as "Berkeley". At directions and conciliation proceedings on 4 August 2000, the applications were adjourned to allow settlement negotiations to occur. At a report back on 24 August 2000, the parties advised that negotiations were continuing, but requested hearing dates be set in the event that settlement could not be reached. 4 Another s84 application arising from the same set of circumstances, IRC4165 of 2000, was joined to the matters on 8 September 2000. As no agreement could be reached, the Commission, pursuant to s87 of the Act, confirmed the arbitration dates and issued directions for the filing and service of evidentiary material. 5 At the hearing of the applications on 27 November 2000, Mr Pearce of Counsel appeared for all applicants. Mr Diamond, continuing his appearance for the respondent, advised matter 4165 of 2000 had been settled. By consent that matter is concluded.

AGREED BACKGROUND 6 The applicants' employment history is summarised as follows:

Name Age Classification Full or Part Time Years of Service Huseyin Arslan 34 Cleaner F/T 7 Marco Suazo 49 Cleaner F/T 9 Chandra Geyer 38 Car-park attendant P/T 5 Metin Niyazi 36 Cleaner F/T 3 Margaret Housbey 52 Cleaner P/T 4 Huseyin Chavush 57 Cleaner F/T 9 Frederick Sheen 49 Cleaner P/T 2 Kay Hannel 55 Cashier P/T 6 Mehmet Akdeniz 51 Cleaner F/T 16 Maria Barton 57 Customer service officer P/T 3

As disclosed in the above chart, the applicants' length of service ranges from two years to sixteen years, with average service of 6.4 years. 7 In March 2000, employees of the respondent became aware of the possibility that their employment was in jeopardy after an advertisement appeared in a local newspaper - Annexure A to Ex'2'. The advertisement called for applications for full time, part time and casual positions for cleaning, security, car park and ancillary duties at Penrith Plaza. Employment would be with Chubb Services; the effect of which was to confirm that the existing contract performed by Berkeley at Penrith Plaza, due to expire three months later on 30 June 2000, had been awarded to Chubb Services.

Arising from the employees' concern, a meeting between management and the employees was held shortly thereafter. However, not all employees could attend due to their particular shift arrangements.

During the next few months, a number of the applicants were interviewed for jobs with the new contractor, Chubb Services, through its employment agency, S.D.I. Recruitment. In addition, the respondent placed a job advertisement on the noticeboard, advising employees of one part-time job available at BHP Rooty Hill. Employees were also aware that the respondent had a number of short term jobs at Olympic related sites and could apply for such jobs. 8 None of the applicants were successful in securing work with Chubb. Some of the employees made inquiries as to the alternative work offered by Berkeley, but only one took up Olympic related work. This work has obviously ended. All applicants were terminated on 30 June 2000. No severance or redundancy payments were made - save for statutory entitlements. 9 Towards the end of the hearing on 27 November, Mr Diamond advised that five full-time positions had arisen for a contract at Rydalmere. The positions would be offered, in writing, to each of the ten applicants.

In light of this development, the Commission adjourned the applications until 13 December, at which time Mr Diamond reported that three of the applicants had rejected the written offers and the remaining seven had failed to respond at all.

10 Much of the affidavit evidence is uncontroversial. It traverses each employee's work history, family and financial circumstances. Other evidence surrounding the loss of the contract is similarly, not in dispute. 11 All ten applicants filed affidavits and five of the deponents, Messrs Akdeniz, Chavush, Niyazi, Arslan and Suazo were required for cross examination.

The applicants required for cross examination were called to explain why they had not taken up the alternative job offers proposed by the respondent.

In this regard I refer to the explanations proffered by the five applicants:

i) Mr Suazo believed the Rooty Hill job was for three to four hours. He didn't apply for the job, as his regular hours were significantly more than four hours. He did, however, take up alternative short term employment at the Olympics.

ii) Mr Arslan , as a full time employee, was not prepared to work for a short time during the Olympics.

iii) Mr Niyazi expected the company to approach him with offers of alternative employment. He had not applied for the Rooty Hill job, but had applied for the Olympics. He declined, however, after securing casual work with two other employers.

iv) Mr Chavush applied for work at the Olympics, assuming it to be full time. When told it was part time, he declined to accept it.

v) Mr Akdeniz applied for work at the Olympics. However, due to illness, he was unable to accept the offer.

12 One area of evidentiary conflict concerns a claim by Mr Suazo, that he had been told by the regional manager, Mr Peter Plarinos, that all the dismissed employees "would be looked after" and that $4 million was available "to fix everyone" (para 6 of Ex'10').

Mr Plarinos, in his affidavit and oral evidence, strenuously denied ever giving such an assurance.

Mr Akdeniz gave evidence that Mr Plarinos had told him (and others) that their " jobs were safe " (T.p18). In his affidavit, Mr Plarinos denied giving this assurance. In oral evidence, he said he did give such an assurance at an earlier meeting of employees in December 1999. However, at that time, he was totally unaware of Lend Lease's intentions in respect to the contract. 13 Mr Plarinos gave evidence of the steps taken by him, on behalf of the respondent, to ameliorate the impact on employees of the loss of the contract and efforts undertaken to find redundant employees alternative work. He identified the following:

Three months' notice was given to all employees.

In late March, he discussed with the manager of the Olympic contract whether jobs were available. However, he did not know if Olympic job applications were advertised at Penrith Plaza after March 2000.

In June or July, he met three other regional managers of the Berkeley Group to explore alternative job vacancies. At that time, no alternative work was available.

A job advertisement for one position at BHP Rooty Hill, was placed on the respondent's notice board.

For the Applicants 14 Mr Pearce submitted:

The termination of the applicants was for reasons of redundancy in the broadest sense. A dismissal on the grounds of redundancy may be "harsh, unreasonable or unjust" within the terms of s84(1) of the Act.

A dismissal on the grounds of redundancy may be a "harsh, unreasonable or unjust" for any of the following reasons: (a) the method of selection to identify the employees to be dismissed; (b) a failure to provide an objective selection criteria in redundancy circumstances; (c) a failure to properly consult the employees concerned about the terminations and the surrounding circumstances;

(d) a failure to provide adequate notice and/or severance payments; (e) a failure to provide suitable alternative employment to a potentially redundant employee. (f) a failure to offer transitional employment, or outplacement services.

He submitted, that in the circumstances presently before the Commission, all of the dismissals were "harsh, unreasonable or unjust" within the terms of s84(1) of the Act because: (a) the applicants did not have any issue relating to the manner in which they performed their duties for the respondent; (b) the respondent is part of a large worldwide cleaning company. Notwithstanding that most of them had many years of service, little, if any, effort was made to relocate any of the applicants to other positions throughout Sydney; (c) there was a failure to properly consult with the employees concerning the redundancy situation; (d) there was a failure to provide any severance payments to the applicants; (e) there was a failure to give consideration to any transitional employment, or outplacement services, to the employees; (f) there was a failure to consider the personal circumstances of the individual employees whose employment was terminated.

Mr Pearce said none of the applicants seek reinstatement. Each one seeks an order for payment of an amount of compensation in the terms of s89(5) of the Act. He submitted that, in circumstances of redundancy, an appropriate level of payment may be determined, in part, by reference to the "safety net" standards established in Re Application for Redundancy Awards (1994) 53 IR 419.

15 Mr Diamond described the circumstances of the loss of contract as "unusual" - as the contract had been held and renewed over a long period of time. The decision not to renew the contract was taken completely out of the respondent's hands.

He conceded that there were limited job opportunities available. However, the applicants made no effort to inquire as to any vacancies. It was reasonable to expect them to do so. He said that, even if the alternative jobs were not comparable, surely any job is better than none.

Relying on the relevant authorities, Mr Diamond submitted that, despite a number of claims being argued in recent years, no redundancy provisions exist in the contract cleaning award. This reflected the nature of the industry. However, Mr Diamond accepted that these circumstances were not able to be characterised as redundancies occurring in the course of the " ordinary or customary turnover of labour ".

The respondent submitted that no orders should be made in the applicant's favour on the grounds of what the respondent had done to ameliorate the situation. Mr Diamond cited the three months notice and offers of alternative work.

On 13 December 2000, after all ten applicants had either rejected, or not responded to the offers of five full time vacancies at Rydalmere, Mr Diamond submitted the Commission should take this rejection into account. The Commission should either, reject the applications, or substantially discount any order the Commission might otherwise be inclined to make.

16 This is a case of redundancy caused by the respondent's loss of the contract to provide cleaning and ancillary services at Penrith Plaza; a contract that had been periodically renewed over many years. 17 The practical reality of these circumstances is that ten employees, many with long periods of service with the same employer, have lost their jobs through no fault of their own. To be fair, the respondent was as much a victim of this unhappy event as the employees. It had held the Penrith Plaza contract with Lend Lease for many years. There was little evidence before the Commission as to why Lend Lease determined not to renew the contract at its expiry on 30 June 2000. One inconclusive reason was that it (Lend Lease) wished to "restructure the way in which the contract work was to be performed". This begs the question, however, as to why Berkeley was not capable of, or even requested to, restructure its contractual arrangements in compliance with Lend Lease's new demands. 18 All employees were dismissed at the same time. In these circumstances, whether there was a fair and objective selection process is not the issue. Obviously, there was no capacity for the employer to retain certain employees in preference to others. While the Commission has some empathy with the respondent's predicament, it remains, nevertheless, a large employer with many divisions and hundreds of employees. At the time of the loss of this contract, for example, it held six hundred commercial contracts, representing two thousand positions - four hundred full time and sixteen hundred part time. Moreover, the Sydney Olympics added twelve hundred full time equivalent positions, albeit of short duration.

Viewed in this context, the loss of this particular contract was unfortunate and inconvenient, but did not severely impact on the respondent's viability or profitability. Indeed, as Mr Diamond submitted, the turnover of commercial cleaning contracts is a widespread and recognised feature of the contract cleaning industry. Life went on for the respondent.

On the other hand, the impact on the applicants was devastating. Long term employees, with a settled expectation of continued employment were dismissed in circumstances which strike me as particularly harsh and unreasonable. In short, I have formed the view that the applicants were unfairly treated. 19 Before turning to detail the harsh and unreasonable circumstances of the applicants' dismissals, I refer to the principles which have developed in recent times in respect to unfairness in redundancy situations. 20 It is well settled law that an employee's dismissal due to redundancy can attract considerations of unfairness such as to warrant a finding of the dismissal being "harsh unreasonable or unjust" according to Pt 6 ch 2 of the Act. 21 In this jurisdiction, the lead authority for this proposition is often referred to in Outboard World v Muir (1993) 51 IR 167, which described unfairness in the context of redundancy: While in the ordinary case it may be that a redundancy genuinely occurring would not come within the parameters of Part 8, Unfair Dismissals, it takes little imagination to apprehend a situation which is both a redundancy and a harsh, unreasonable or unjust dismissal. For example, it may be that in selecting employees for redundancy an employer unilaterally decides to terminate an employee of long and exemplary service over another employee. The facts of the case may demonstrate both redundancy of one position but unfairness as against the employee selected. Once that position is accepted then it follows that an employee is not necessarily incapable of suffering an "unfair" dismissal in the context of a position becoming redundant. Other examples come readily to mind.

22 The Commission also finds the question posed by Lee J of the Industrial Relations Court of Australia in Aitken v Construction, Mining, Energy, Timberyards, Sawmills and Woodworkers Union of Australia - Western Australia Branch, 63 IR 1 at p7, particularly apposite to the considerations I am faced with in this case: The question in this case is whether the employer gave due regard to all reasonable and fair considerations the employee was entitled to expect as part of the employer/employee relationship that existed between them prior to termination of the employee's services. That is to say, acting fairly and having due regard to the interests of the employee did the employer do that which could be reasonably expected of it in the circumstances to avoid the termination operating harshly, unjustly or unreasonably?

Also of relevant interest is a passage from Budget Couriers Equity Management v Beshara (1993) 5 VIR 173, in which a Full Bench of the Employee Relations Commission of Victoria said in 1993: In approaching matters alleging that a dismissal is harsh unjust or unreasonable, it is not enough for an employer to establish that the circumstances are one of a genuine redundancy. The dismissal must be tested against substantive and procedural fairness. It is insufficient for an employer to raise the aegis of a genuine redundancy as a wand against this commission intervening where the circumstances in which the redundancy was imposed are otherwise harsh unjust or unreasonable. The obligations to consult to provide adequate notice and to apply objective selection criteria in determining which employee is to be made redundant are factors in determining whether a dismissal was harsh unjust or unreasonable. The concept of "industrial fair play" is to be observed by both parties to a contract of employment and the need to make employees redundant does not absolve employers from this general principle. A failure by an employer to ensure that these principles are followed may lead to a finding characterising a dismissal as harsh unjust or unreasonable and to consequential orders. The fact that an employer has complied with the strict notice and severance payment provisions of the standards established in the Termination Change and Redundancy Cases ((1984) 8 IR 34; (1984) 9 IR 115; 2 VIR 36) will not necessarily dissuade the commission from intervening to provide a remedy where a dismissal on the grounds of redundancy comes within the statutory criteria of s42(1) of the Employee Relations Act 1992.

A useful summary of other relevant authorities is to be found in Quality Bakers of Australia v Goulding (1995) 60 IR 327 at 334-336. 23 My own summation of the matters to be considered in cases such as this is to be found in Shop Distributive and Allied Employees Association, New South Wales and W D & H O Wills, IRC3363 of 1999, 9 June 2000. Here the Commission summarised the obligations on employers in redundancy situations. At para 66 I said: ... In redundancy situations, an employer is obliged to: 1. give reasonable notice to employees and/or their Unions;

adequately consult with employees and/or their Unions on the impact of the proposed changes;

explore genuine alternative options for redundancy, such as redeployment or relocation;

ensure such options are fairly offered to the affected employees;

provide reasonable standards of redundancy benefits;

provide appropriate ancillary services, such as time off to seek alternative work, retraining opportunities, outplacement services or financial planning;

ensure employees nominated for redundancy are fairly selected on an objective and unbiased basis.

24 Of course, a failure to properly, or exhaustively comply with each, and every one, of these obligations might not necessarily warrant an adverse finding against an employer. Each case will be determined on its own particular set of facts and circumstances. 25 However, I am well satisfied in this case, that the respondent failed to meet at least four of these obligations. Thus the Commission is able to safely ground a finding of unfairness visited upon all the applicants. I shall deal with each failure in turn.

The employees first learnt their jobs were in jeopardy when an advertisement appeared in a local paper in March 2000 advising that Chubb Services were seeking employees for the same work they were then performing for Berkeley.

By any standard of responsible industrial behaviour this was an appalling way of finding out one's job was in jeopardy. Understandably, employees were shocked and confused. It was humiliating and completely unacceptable. A fortiori , when contrasted to assurances given to the employees by Mr Plarinos in December 1999 that their jobs were secure.

Nevertheless, the Commission appreciates that Mr Plarinos, had himself been kept in the dark, as revealed when he confronted Mr Graeme Kaye, Lend Lease's Assistant General Manager for the site, soon after the newspaper article appeared.

Mr Plarinos said that Mr Kaye responded as follows: Peter I am really sorry this is a stuff up. I had to go into hospital and I meant to tell you before I went in but Chubb went ahead with the advertisement before I was able to get you in and explain to you. I really apologise about this but the company has decided to award an all up contract to Chubb to do security and cleaning and everything which means you people are out. Your contract will run until the end of June but after that you will go.

Mr Kaye did not give evidence in the proceedings. I therefore am prepared to accept Mr Plarinos' version of this conversation. I take this matter no further, suffice to observe that Lend Lease's contribution to these circumstances reflects rather poorly upon it's commercial propriety.

Despite this, it seems very probable that Berkeley's senior management were aware that something was amiss three months earlier, when rumours were circulating that Berkeley might lose the contract. Employees were sufficiently aware and alarmed to confront Mr Plarinos about their job security.

But what did Berkeley do? Apparently nothing. At the very least, it was incumbent on Berkeley's management to thoroughly investigate these rumours. It didn't do so. Sadly, the respondent gave the impression that the contract would be renewed. This response demonstrates at best an indifference to the plight of their long serving employees, and at worst, a total mishandling of the emerging scenario. 27 2. Failure to explore genuine alternative comparative employment

To my mind, the company paid lip service to efforts to find alternative work for the redundant employees. It did little more than make a few cursory inquiries about job vacancies.

Mr Plarinos had one meeting with three regional managers. He made no other inquiries of the larger divisions. He did not inquire of the CBD contracts where one might expect dozens of employees would have been employed, and where turnover would be high. Nor did he inquire of Spotless Catering, a large associated division of the respondent.

It's meagre defence that jobs were available and the onus was on the employees to chase the jobs is, in my view, not nearly enough to fulfil the employer's obligations. There is a duty on an employer to take positive and proactive steps to explore alternative comparable positions for its redundant employees.

Even so, what were the alternatives? A notice on the board for one job and relying on the grapevine to inform employees of possible Olympic positions. Such was the lengths the respondent went to explore alternative work options. Nothing was done of any substance or utility for the redundant employees. Moreover, the employer seemed to expect the employees to do it all themselves.

Even if these paltry steps could be regarded as sufficient or reasonable, the two alternatives were not comparable employment. The single Rooty Hill job was part time. Obviously, the Olympics jobs were of short term duration. One could well understand the reluctance of the employees to take up such positions, when they bore little resemblance to the settled, and consistent, employment they had enjoyed for many years.

28 3. Failure to provide reasonable standards of redundancy benefits

It is trite to observe that permanent employees in other industries in New South Wales are provided with relief in redundancy circumstances through benefits which are now regarded as minimum redundancy provisions under State test case standards. See Re Application for Redundancy Awards , 53 IR 419 and Principles for Review of Awards - State Decision 1998 , 85 IR 38. In my opinion, one fundamental element of unfairness was that no severance or redundancy payments were paid to any of the applicants.

I cannot imagine in any decent, contemporary industrial environment that, employees with many years service, with the same employer, should be denied the same rights that other employees are guaranteed by test case standards of this Commission.

The test case decisions, of course, have identified categories of employees who are excluded from redundancy provisions. These include casuals, short term employees and employees on fixed term contracts.

Similarly, an exclusion applies to employees engaged in industries which are characterised as involving the "ordinary and customary turnover of labour".

Reference is made to this exclusion in the decision of the Full Bench in Re Redundancy Awards at p444: Taking a balanced view of the case as a whole, it is appropriate that this aspect of terminations, traditional as it is, be distinguished from redundancies arising from economic recession and financial stress, technological change and company reconstruction or restructuring. Terminations in the context of the general turnover of labour are the norm; they are expected: there is no basis for thinking that some 'settled expectation' has been lost. The occurrence of the likely or expected event should not bring with it an unnecessary and unwarranted additional burden on the employer and a windfall gain for the employee.

The Commission was informed that large commercial cleaning contracts have a usual term of two to three years and that it is not uncommon for such contracts to be "turned over".

Do the circumstances here disclosed reveal the "usual" position? Are the employees unfortunate victims of the "ordinary and customary turnover of labour" in the contract cleaning industry? The Commission cannot accept that employees with five to sixteen years' service fall in a category of employment which could meet the definition of "ordinary and customary turnover of labour". I note that Mr Diamond correctly eschewed describing these terminations as arising within the scope of the term. He described the circumstances as " unique and unusual ". I agree with this submission. Moreover, the unusual circumstances disclosed in this case justify an unusual and unique remedy.

It is obvious to me that the exclusion discussed in Re Redundancy Awards is plainly distinguished from the circumstances in this case.

Another test which might be applied is that of a reasonable bystander. What would a reasonable bystander make of the applicants' employment? In my opinion, there can be little doubt that any reasonable bystander would consider these employees as long term employees entitled to the legitimate and settled expectation of ongoing employment.

It was Lend Lease, and not the respondent, which organised interviews for employees for positions with Chubb - although none were successful. Berkeley's curious response to this initiative was to criticise Lend Lease for disrupting its work program by taking employees off the job. This disingenuous response is extraordinary. It is a poor and uncharitable reflection on what it now claims to be a genuine concern for the employees' welfare.

In my view, the respondent cried bucket loads of crocodile tears, but did little, or nothing, to give practical assistance to its long standing and loyal employees.

30 It is appropriate at this point to refer to Mr Suazo's claim that Mr Plarinos had said "$4 million was available to fix everyone". Although little turns on this issue, I do not believe that Mr Plarinos gave such a guarantee. This is not to infer that Mr Suazo was untruthful. In the context of employees having been assured their jobs were secure in December 1999, it is conceivable that he misheard a conversation, or it was enmeshed in the general rumours and gossip at the time.

In any event, for Mr Plarinos to give such a guarantee would have been highly unlikely. He was certainly in no position of authority to do so. It would have been foolhardy knowing he might have been held to account. Mr Suazo is the only employee who heard such a comment - even though he says it was made in a "meeting" involving a number of employees. No other employees gave evidence of Mr Plarinos' supposed guarantee. Without corroboration, and in view of the unlikelihood of it occurring, I accept that no such guarantee was given.

31 In light of the aforementioned consideration, the Commission finds that the dismissals of all ten applicants were "harsh and unreasonable" within the meaning of Pt 6 ch 2 of the Act. 32 While the Commission is favourably disposed to ordering re-employment of the applicants, I am conscious of the practical realities of doing so, and the wishes of the applicants - particularly those who have secured alternative employment. 33 The Commission therefore intends to make compensatory orders in favour of the applicants by taking into account the following matters pursuant to ss88 and 89 of the Act:

iv) whether alternative employment was sought and/or obtained;

v) remuneration earned by the employees since dismissal. 34 The Commission has also taken into account the respondent's offers of five full time positions on the Rydalmere contract. Mr Diamond submitted that the applications should be dismissed, or any compensatory order discounted, because of the failure of all the applicants to apply for the positions.

The Commission appreciates the bona fides of the respondent and welcomes the fact that job offers were made to redundant employees.

In my view, it is perfectly reasonable that an offer of comparative alternative employment made prior to, or soon after, a redundancy would be a significant matter the Commission would take into account when assessing what, if any, finding should be made as to unfairness or relief. See my discussion in W D & H O Wills . 35 However, in the present case, the timing of the offers, some five months after dismissal, raises a number of intriguing questions.

At what point in time after a dismissal is it reasonable for an employee to refuse an offer of alternative work? Should an employer be able to seek a relisting of a matter after the case has concluded and before judgment, where it has offered re-employment to an applicant and such re-employment is refused?

There are, it seems to me, some real and practical difficulties in this regard. Not least of which, is, I think, that this section of the Act should not be construed unfavourably against an applicant when offers of employment arise many months after a dismissal.

In my view, the primary focus must be on the alleged unfairness of the dismissal and the circumstances surrounding it. It is a two staged process. Having found a dismissal to be unfair, it is open to the Commission, when assessing the nature and extent of the relief to be ordered, to take account of a range of discretionary factors, including the matters in s88 and the express provisions of s89(6), requiring the Commission " to take into account whether the applicant made a reasonable attempt to find alternative employment and the remuneration received in alternative employment, or that would have been payable if the applicant had succeeded in obtaining alternative employment ".

I take the view that an offer made, many months after dismissal, would unlikely be regarded as reasonable alternative employment in the context of a finding of the dismissal being unfair.

To illustrate the difficulties herein considered, I make the following observations:

i) Even if all ten applicants applied for, and secured the positions, five would have logically missed out.

ii) Although the Rydalmere jobs were full time, there was insufficient evidence as to whether the jobs were comparable alternative employment.

iii) It was unclear whether successful applicants would have retained continuity of service or have been paid for the period since dismissal.

iv) The matters which give rise to the Commission's findings of unfairness, outweigh the offers of alternative jobs made five months after the original unfair dismissals.

Nevertheless, the Commission reiterates that I appreciate the good faith in which the offers were put. However, on balance, I am not inclined to accept Mr Diamond 's submission.

36 Pursuant to s89(5) of the Industrial Relations Act 1996, the Commission orders that:

Berkeley Challenge (Commercial) Pty Limited shall pay to:

i) Huseyin Arslan an amount equivalent to fourteen (14) weeks' wages;

ii) Marco Suazo an amount equivalent to nineteen (19) weeks' wages;

iii) Chandra Ruby Geyer an amount equivalent to ten (10) weeks' wages;

iv) Metin Niyazi an amount equivalent to six (6) weeks' wages;

v) Margaret Housbey an amount equivalent to nine (9) weeks' wages;

vi) Huseyin Chavush an amount equivalent to nineteen (19) weeks' wages;

vii) Frederick George Sheen an amount equivalent to five (5) weeks' wages;

viii) Kay Hannel an amount equivalent to thirteen (13) weeks' wages;

ix) Mehmet Akdeniz an amount equivalent to twenty-six (26) weeks' wages;

x) Maria Barton an amount equivalent to seven (7) weeks' wages.

The calculation of the weekly wage is to be by reference to the average weekly rate over the six months employment prior to 30 June 2000.

The amounts so ordered are to be paid within twenty-one (21) days of today.

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.

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (109 paragraphs)

Parties

Cases Cited (5)

Cited By (10)