18 June Cory Darcy employed
33 In analysing the number of settlements, Mr Byrnes submitted that the figures leading to the appointment of Ms Page and Ms Chamberlain were rising from 10 to 18 over the period July to November 1999, with 32 recorded in December 1999. Mr Byrnes put that on this level of business the respondent deposed that there was adequate work for three employees in the Port Macquarie Office; yet in October 2000, with settlements in the high 20's and low 30's and subsequently rising to 50, the consideration, without consultation or notice to Ms Rose, was that there was not enough work and that she should be made redundant.
34 Mr Byrnes submitted that the argument against the genuineness of the redundancy is further supported by subsequent settlement numbers and the employment in the period March 2001 through June 2001 of two additional staff members.
35 Mr Byrnes submitted that Ms Rose was denied substantive and procedural fairness, emphasising that she was invited to leave a secure position to join the respondent's organisation with an implied promise of long term employment. Mr Byrnes put that there was no argument from the respondent that Ms Rose had failed to carry out her duties in an efficient and effective manner.
36 Mr Byrnes referred me to Re The Holy Family School, Lindfield re Dismissal of Teacher (1975) 75 AR 991 wherein it was held that termination due to a lack of qualifications was unfair. At p994 Dey J said:
I agree with the commissioner that to terminate, because of the lack of academic qualifications, the employment of a teacher who had been teaching acceptably at the school without them, without warning her that her employment would be terminated unless she took steps to become so qualified, was to treat her unfairly. It seems to me too, that the other reasons, raised for the first time at the hearing, do not cancel out the injustice of the dismissal.
37 Mr Byrnes also relied upon the decision of Mr Commissioner Buckley in Clancy v Owen Carney Co-Op Limited (Matter No 1952 of 1993, 18 March 1994 unreported) in which Buckley CC held that a seasonal worker of many years experience, dismissed due to his inability to deal with more complex machinery, was unfairly dismissed as he had not been consulted concerning his technical deficiency or offered any training to adapt.
38 Mr Cox put that the onus of proof lay on the applicant to establish the allegation that redundancy was not genuine.
39 Mr Cox submitted that the analysis of the business performance and prospects must be taken from a view of matters exchanged, as settlement would not be expected for some weeks, and total active matters which indicated the current business activity; and that this analysis is much more reliable than matters settled in the month.
40 Mr Cox submitted that an appropriate projection of future activity for the consideration of staffing matters is the sharp down turn in matters exchanged following the introduction of the Goods and Services Tax (GST) in July 2000, which reflects in a decline in total active matters and a subsequent decline in matters settled. This, Mr Cox submitted, combined to reveal declining activity and a restriction in revenue supporting redundancy.
41 Mr Cox submitted that the applicant was the appropriate employee to be made redundant as she held no qualifications or prospect thereof. Mr Cox submitted that a unique feature of the respondent's operations is that all employees carry out identical work.
42 Mr Cox noted that to become a licensed conveyancer, a two year course must be taken, putting that the prospect that the applicant obtain qualifications had not offered a timely resolution to the immediate problem.
43 Mr Cox referred me to a decision of Mr Commissioner Connor in the matter of Buchanan v Australian International English College (Matter No 1938 of 1993, unreported) which holds that it is a matter for the employer to select the best employee.
44 Mr Cox submitted that the prospect of re-employment did not arise for some seven months after the termination of the applicant's employment, which corresponded with a significant up turn in total active matters in April, May and June of 2001.
45 Mr Cox submitted that the termination of the applicant's employment was not harsh, unreasonable or unjust and that at worst the respondent's actions in asking the applicant to leave immediately and not giving a proper warning would be at the lower end of the scale of procedural unfairness; though, in his submission, justified by the sensitive nature of the work undertaken and the consequence of error.
46 Mr Byrnes, in reply, referred me to a decision of Mr Commissioner Shields in Wildey v Asset Developments (Matter No IRC 1238 of 1994, 27 July 1994, unreported).
47 Mr Byrnes put that the argument advanced by the respondent of financial imperative is not supported in these proceedings by any commercial information whatsoever.