Sheiles v T B Clarke

Evidence Act 1995 LEGISLATION CITED: Industrial Relations Act 1996 Uniform Civil Procedure Rules 2005

Abboud v NSW (Department of School Education) (No. 2) (2000) 99 IR 299 Fryar v Systems Services Pty Ltd (1996) 137 ALR 321 CASES CITED: Hammond v Manildra Flour Mills Pty Ltd [2003] NSWIRComm 64 Henshaw v Sqribe Technologies Pty Ltd [2000] NSWIRComm 279 Lavings v Barclay Mowlem Construction (NSW) Ltd (1999) 99 IR 247 Murton v T D Preece & Co Pty Ltd [2006] NSWIRComm 367

HEARING DATES: 18/04/2006, 19/04/2006, 20/04/2006. Written submissions: 25/05/2006, 06/06/2006, 16/06/2006.

Applicant: Mr J Berwick of counsel Solicitors: G H Healey & Co LEGAL REPRESENTATIVES: Respondent: Mr A Gotting of counsel Solicitors: Minter Ellison

JOHN SHEILES v TB CLARKE (OVERSEAS) PTY LIMITED ACN 001 014 857

Application under s 106 of the Industrial Relations Act 1996

1 The applicant, John Sheiles, has commenced proceedings against the respondent seeking relief under s 106 of the Industrial Relations Act 1996 (the Act). The application, which has proceeded by way of Summons for Relief, seeks orders in the following terms:

(1) An order declaring void as an unfair contract pursuant to Section 106 of the Industrial Relations Act 1996 ("the Act"), in whole or in part, either from its commencement or from some other time the contract, contracts or the arrangements between the Applicant and the Respondent whereby the Applicant performed work in the Book and Magazine Distribution Industry for the Respondent;

(2) Further, in addition, an order that any or any collateral arrangement or related conditions to such contract, contracts or arrangements between the Applicant and the Respondent whereby the Applicant performed work in the Book and Magazine Distribution Industry for the Respondent or any collateral arrangements or related conditions to such contract or arrangement was unfair, harsh, and unconscionable and contrary to the public interest pursuant to Section 106 of the Industrial Relations Act 1996 ("the Act").

(3) Further, in addition, an order varying the contracts or the arrangements between the Applicant and the Respondent whereby the Applicant was employed by the Respondent to perform work in the Book and Magazine Distribution Industry for the Respondent or any collateral arrangement or related condition to such contracts or arrangements from its commencement so as to delete all terms and to include the following terms:

(a) Termination of employment under this contract shall not be harsh, unjust or unreasonable. For the purposes of this clause termination of employment shall include termination with or without notice;

(b) Upon termination of employment during the term of this contract for any reason the Respondent shall give to the Applicant twelve months written notice of termination or payment instead of such written notice of termination;

(c) Upon termination of employment for the stated reason of redundancy in addition to the payment referred to in the preceding clause the Respondent shall pay to the Applicant an amount of money equivalent to twelve (12) months remuneration;

(d) For the purpose of calculating payments in respect of notice and redundancy, payment shall be calculated by reference to the monetary value of all of the employment benefits that the Applicant would have received during the notice period including, but without limiting the generality of the foregoing, the monetary value of all clothing allowances, motor vehicle allowances, superannuation contributions, bonuses, long service leave entitlements, sick leave entitlements and maternity entitlements that would have been earned during the notice period. 2 Other consequential orders sought include orders for interest and costs. Background

3 On 8 April 2000, the applicant, a qualified accountant, applied for a position with the respondent as a financial controller after seeing an advertisement for the position in the Sydney Morning Herald newspaper some time in early April. 4 At about 9.30am on 28 April 2000, the applicant attended an interview for the position with Ronald Phair, the respondent's general manager, and Quentin Austin, the general manager of Marinya Holdings Pty Ltd, which was the respondent's holding company. There are conflicting versions between the parties as to the content of the discussions during the interview. The applicant says he informed Mr Phair and Mr Austin that he was interested in a long-term position, and that once he secured permanent full-time work in Sydney he intended to relocate his family from Queensland. According to Mr Phair and Mr Austin, the applicant told them that he was in the process of moving to Sydney and was looking for employment. The applicant, in his written application for the position, stated:

Please note, I am relocating to Maroubra with my family in approximately 30 days. I will be in Sydney on a regular basis during this time.

Mr Austin says he understood from this statement that the applicant would not be relocating from Queensland specifically to take up the position as financial controller with the respondent. 5 According to Mr Phair, at no time during the interview did he or Mr Austin mention the anticipated duration of the applicant's employment. The applicant says that Mr Phair told him that the position was permanent and, "... will be long-term". 6 On 2 May 2000, Mr Phair, on behalf of the respondent, prepared and sent by facsimile, a letter to the applicant offering him the position of financial controller. The applicant accepted the offer on the same day. The letter is reproduced in full below:

It is with pleasure we offer you the position of Financial Controller - T.B. Clark (Overseas) Pty Limited.

The terms and conditions offered with the position are as follows:

Salary Package (including superannuation): One Hundred and Five Thousand Dollars ($105,000) per annum. Reviewed annually on July 01.

Annual Leave: As per the Clerical and Administrative Employees (State) Award.

Commencement Date: To be advised by you on acceptance of this offer.

This position reports directly to the Group General Manager and is responsible for the preparation of accurate and timely management and financial reports presented to the Directors.

We are sure you will enjoy working with a team of highly motivated staff who are looking forward to the challenges of participating in the planned growth of our operations.

Kindly acknowledge your acceptance of the position offered by signing the attached offer copy and forwarding it by return facsimile to Jo Scorer on 02 9517 9744. 7 On the following day, Mr Phair sent to the applicant, by facsimile, the job specification for the position of financial controller. The principal areas of responsibility for the position, according to the document, included the preparation of monthly accounts for the respondent, as well as a number of other related companies. In addition, the applicant was responsible for the annual budgets, annual accounts and taxation schedules, premises management, staff control and training and employment, computer management insurance, fixed assets schedules, and a number of other responsibilities which extended to the respondent's Fijian interests. 8 The respondent was one of a number of companies of which Marinya was the holding company. As at April 2000, the respondent's business had three components, namely, a magazine distribution unit, a new books distribution unit and a second-hand (remainder) books distribution unit. The first named unit accounted for 38% of the respondent's business, the second and third units approximately 14% and 48% respectively. Australian Consolidated Press (ACP) was a major supplier of the respondent's magazine distribution unit and as at April 2000, represented about 75% of that unit's work. 9 The applicant commenced work for the respondent on 14 May 2000. At that time, the respondent employed about 23 employees, four of whom worked full-time processing invoices and handling accounts payable and receivable. The applicant was required to check the work of these four employees and otherwise supervise them in their day-to-day work activities. The applicant also completed the financial accounts and reports for April to August 2000 inclusive, including the necessary supporting documentation and schedule and the 2000/2001 profit budgets. The reports concerned not just the respondent, but its subsidiaries which consisted of Corporate Express International Pty Limited, World of Learning Limited and TB Clarke Fiji. 10 Mr Phair and Mr Austin recall in their affidavits that some time in June 2000, ACP advised them that from the end of July 2000, the respondent would no longer have its magazine distribution work. According to Mr Phair, the loss of the magazine distribution work had a number of consequences. Corporate Express International, a freight forwarding business, lost about 40% of its work. The respondent's Fijian branch also had its work significantly curtailed. The applicant says that as a result of the loss of the ACP work, Corporate Express International was closed, and that he assisted in closing the business. These matters, according to the applicant, reduced the business to a single operation with greater profitability because the operating costs were far less and there was a greater focus on the remainder books business (which had apparently generated more profit than the other units). 11 The respondent in light of the loss of the ACP work decided to review its operations. Mr Phair conducted the review initially in June 2000 and later in July and August 2000. One of the results of the review was a decision by Mr Phair that the respondent no longer required a person to perform the work of a financial controller on a full-time basis. He met with the applicant, he says, on 30 August, and informed him that because the ACP work had been lost, a number of positions would have to be made redundant, including the applicant's position. The applicant denies that the meeting took place. Mr Phair says a second meeting took place on 11 September 2000 during which he told the applicant that he anticipated his employment would end in about mid-November. Mr Phair says the applicant told him that he would need to start applying for other positions. The applicant also denies that this meeting took place. 12 On 3 October 2000 a meeting took place between the applicant and Mr Phair, at which the applicant's termination of employment was discussed. Mr Phair suggested that the applicant should work until either 10 or 17 November 2000. The applicant asked Mr Phair whether he would receive an ex gratia payment. Mr Phair said:

I will discuss it with Head Office but due to your short employment, I am not confident. All staff who are entitled to redundancy have received written details of their entitlements. 13 On 5 October 2000 Mr Phair advised the applicant that his last day of employment would be 17 November 2000 but that he would not receive an ex gratia payment. 14 On 30 October Mr Phair prepared and signed a letter of reference which he gave to the applicant. The letter stated:

This will certify that Mr John Sheiles of 17 Jennifer Crescent, Thirroul NSW 2125, has been employed by the above group of companies since 14 May 2000.

Mr Sheiles has been employed in a short term capacity as Financial Controller, a position in which he was required to prepare, and analyse, monthly and annual management reports and budgets for various companies in the Group.

In the time I have been involved I have found Mr Sheiles to be a very willing worker at all times, and a person who could maintain a very even temperament under pressure.

Mr Sheiles leaves the company on November 17, 2000 and takes with him the best wishes of management for his future career. 15 On 8 November Mr Phair on behalf of the respondent sent the applicant a letter which was in the following terms:

I refer to our discussion on October 5 and confirm that the position of Financial Controller will become redundant and that your position with the company will cease on November 17, 2000. 16 In anticipation of his impending termination of employment the applicant, from 15 October 2000 began applying for work with a number of other businesses. He was ultimately successful in obtaining a position as a financial controller with Lachley Meats (Forbes) Pty Ltd which was located in Forbes, New South Wales. He commenced working for that company on 23 November 2000. He was unable to find accommodation for his family in Forbes and instead found accommodation in Parkes which is approximately 35 kilometres from Forbes. Although the applicant's employment with the respondent was officially terminated on 17 November 2000 he worked an additional 3 days, his last day of work being 22 November 2000. 17 He received a termination payment after tax in an amount of $9001.00. The amount appears to be based on two components comprising outstanding annual leave in an amount of $3791.86 before tax and a "redundancy pay (wages)" payment in an amount of $6615.58 before tax. The applicant denies receiving any payment by way of redundancy. According to the respondent the applicant received the equivalent of one weeks pay as a redundancy payment. Contract under which work performed

18 The work performed by the applicant for the respondent as a financial controller clearly satisfies the jurisdictional pre-requisite for work performed in any industry under s 106(1) . The contract of employment under which the work was performed was not in writing although the respondent's letter of offer dated 2 May 2000 set out a basic framework consisting largely of the applicant's remuneration and annual leave entitlements. The applicant was also provided with the job specification document which set out his areas of responsibility as financial controller. The industry in which the applicant performed work was described in the summons as the book and magazine distribution industry. Was the contract unfair?

19 The applicant's case that the contract was unfair is set out in the summons. The principal allegation appears to relate to the circumstances of the applicant's termination of employment. The summons then sets out twelve indicia of alleged unfairness which purport to relate to the circumstances of termination of employment. Many of the indicia bear little if any relationship to the matters relied upon by the applicant in the summons. Rather, the applicant in submissions places reliance on the issues of redundancy and notice as providing the principal bases for the allegation that the contract operated unfairly against him. 20 The grounds of alleged unfairness said to render the contract unfair, or cause the contract to operate unfairly, are set out in the summons as follows:

1. The contract of employment and/or arrangement between the Applicant and the Respondent under which the Applicant performed work for the Respondent in an industry was and is unfair, harsh and unconscionable and contrary to the public interest in so far as it related to termination and payments of commission and/or bonuses upon termination in that:

(a) it permitted the Respondent to terminate the contract of employment or the arrangement without any or any sufficient valid reasons;

(b) it invested the Respondent with a significant discretionary power to terminate the contract which may (sic) (and has been in the operation of the contract or arrangement) used to the substantial disadvantage of the Applicant particularly in circumstances relating to termination of the contract and/or the arrangement;

(c) it permitted the Respondent to deprive the Applicant of the significant benefit of long term secure career employment;

(d) it failed to provide for the giving of a fair and appropriate period of notice of termination of employment in all the circumstances;

(e) it failed to provide any reasonable, fair, adequate and just payment to the Applicant > (sic) by the Respondent upon termination for any reason;

(f) it failed to provide for any reasonable, fair, adequate and just redundancy payment to the Applicant by the Respondent upon termination for the stated reason of redundancy;

(g) it failed to protect the Applicant against harsh, unjust and unreasonable termination of employment by the Respondent;

(h) it failed to provide the Applicant with fair, conscionable and appropriate protective and security provisions such that would guard against the Respondent's use of contractual powers in circumstances that were unfair, harsh or unreasonable;

(i) the Applicant was, at all material times, in a position of unequal and inferior bargaining power in respect of his dealings with the Respondent and was specifically in such a position at the time of termination;

(j) it failed to provide for the payment of compensation to the Applicant by the Respondent in circumstances where the Respondent unreasonably terminated the contract in such a manner and for such reasons as would cause the Applicant distress, anxiety and damage to his good name and character;

(k) it was on its face unfair, harsh and unconscionable in that it permitted the Respondent to terminate the contract of employment upon the giving of no notice to a person who at the time of termination served the Respondent in a senior management role;

(l) it was otherwise unfair, harsh and unconscionable and contrary to the public interest upon such other grounds and for such other reasons as this Honourable Commission may find. 21 The principal areas of contention between the parties as to the alleged unfairness of the contract are three, namely:

(i) whether the respondent held out to the applicant that the position of financial controller carried with it the prospect of long-term employment;

(ii) whether, based on the respondent's representations concerning long-term employment the applicant made a joint decision with his family to relocate from Queensland to Sydney;

(iii) whether the contract made provision for adequate notice upon termination. 22 There was no issue between the parties that the applicant's position was made redundant at the time of his termination of employment. It will have been observed from the summary of the factual background earlier outlined that no formal written contract was entered into between the parties. The documentation, such as it is, which provides part of the evidentiary basis for the existence of the contract clearly makes no provision for a monetary payment in the event of a termination of employment on the ground of redundancy. The failure to make provision for a redundancy or severance payment in a contract may render the contract unfair under s 106: see Lavings v Barclay Mowlem Construction (NSW) Ltd (1999) 99 IR 247 at 253-254; Henshaw v Sqribe Technologies Pty Ltd [2000] NSWIRComm 279 at [33]. This issue will be addressed in more detail later in this judgment. 23 Returning to what I have described as the three principal areas of contention, I propose to separately examine each contention. Whether respondent held out prospect of long-term employment

24 The respondent suggests that the approach to be taken in determining the issue of long-term employment involves a consideration of whether the respondent falsely represented to the applicant at his employment interview that the position was long-term; and, whether the applicant relied on the representation. I do not agree that such an approach to the issue is correct or otherwise warranted. The issue I have to decide is whether the contract operated unfairly against the applicant by reason of, for example, certain conduct of the respondent referable to the circumstances of termination of the contract, by holding out to the applicant that his employment had long-term prospects. It is inappropriate when embarking upon a consideration of this issue to adopt an overly technical approach to whether the respondent falsely represented to the applicant his employment prospects and whether or not it was relied upon by the applicant. These are questions not necessarily determinative of the issue of unfair contract which does not fall to be decided by reference to characteristics drawn from the common law of contract or trade practices law. This latter point was raised by the applicant in submissions and in my view is reflective of the correct approach. 25 According to Mr Phair he made no specific reference at the applicant's interview to the position of financial controller being for a "long-term" period. Mr Austin in both his oral and affidavit evidence did not recall the position being presented to the applicant as a "long-term" position. I approach Mr Phair's evidence with some degree of caution. His affidavit was tendered into evidence in the proceedings following a voir dire examination as to whether, under s 64(2) of the Evidence Act 1995, it would not be reasonably practicable for Mr Phair to attend the hearing and give evidence, on the ground that Mr Phair was terminally ill. The respondent gave notice as required under s 67 of the Evidence Act and called evidence from Mr Phair's treating doctor as to Mr Phair's medical condition. Having satisfied the necessary pre-requisites for admission into evidence of the document, I allowed the tender emphasising, at the time, that Mr Phair's evidence was not able to be tested and becomes ultimately a matter of weight. 26 Rather than focus too closely on what was said between the parties at the interview, it is, in my view, of more substance to examine the independent documentation, to see whether or not the inference may reasonably be drawn that the position was presented to the applicant as one with long-term prospects. 27 The advertisement for the position which was published in the Sydney Morning Herald in April 2000 asserted that the position was, "...a crucial role within the management team", and that the successful applicant was, "...expected to contribute to the continued growth of our group". Candidates were informed that they will, "...have a hands on approach with the drive and vision to progress within the company". Terminology such as "continued growth of our group" and, "drive and vision to progress within the company", are strongly indicative, in my view of a position anticipated to be in the long-term. The letter of offer of 2 May 2000 in my view similarly emphasise a long-term position where it impresses upon the applicant, "...the challenges of participating in the planned growth of our operations". No doubt the applicant, as he said in his evidence, would not have considered joining the respondent if he had known that the position was to be made redundant within 6 months. Certainly there is no evidence to suggest that the respondent intended that the position would be for a fixed term or short term. Rather, all the indications are to the contrary. I therefore find that the position of financial controller was presented to the applicant as a long-term prospect, and that on that basis the applicant accepted the position. Whether applicant's decision to relocate was based on the representation of long-term employment.

28 I am unable to draw a reasonable inference in the applicant's favour in relation to whether his decision to relocate to Sydney was premised upon his obtaining long-term employment with the respondent. 29 The applicant's application by way of letter to the respondent for the position of financial controller stated in the final paragraph:

Please note I am relocating to Maroubra with my family in approximately 30 days. I will be in Sydney on a regular basis during this time. 30 The applicant was cross-examined in relation to that statement, and conceded that his decision to move to Sydney was made before he applied for the position of financial controller with the respondent. An extract of the cross-examination illustrates this point:

Q: In the last paragraph you wrote: Please note I am relocating to Maroubra with my family in approximately 30 days? A: Yes.

Q: That was a correct statement? A: Yes.

Q: At 8 April 2000 you decided to relocate to Maroubra with your family? A: Correct.

Q: And you decided to do so in approximately 30 days? A: Correct.

Q: And you made that decision prior to applying for the position of financial controller at the respondent? A: Yes, of course.

Q: The position was that you decided to relocate to Sydney irrespective of whether you obtained employment with the respondent? A: I guess so, yeah.

Q: There is no doubt about it, that is what you said in the letter? A: Yes.

Q: The letter was correct at the time you wrote it? A: Yes. Whether provision in contract for adequate notice

31 The applicant's contract contained no express provision in relation to notice. A reasonable notice period is therefore implied. Such a term of itself is not unfair: see for example, Murton v T D Preece & Co Pty Ltd [2006] NSWIRComm 367 at [48]; Hammond v Manildra Flour Mills Pty Ltd [2003] NSWIRComm 64 at [21]. Nevertheless, as I said in Murton v T D Preece, (at [48]), an implied term of reasonable notice, although not of itself unfair may operate unfairly on the contract in circumstances where the termination of an applicant's employment constitutes unfairness by reason of, for example, the failure to make a monetary payment in lieu of notice, or make provision for any notice where there is no finding of misconduct. 32 In the present circumstances there was no issue that the applicant while in the respondent's employ, performed his work satisfactorily. This is supported in any event by the contents of the letter of reference dated 30 October 2000 prepared by Mr Phair. There is some dispute as to exactly when the applicant was given notice of his termination of employment. Mr Phair for example claims that he forewarned the applicant of the impending redundancy of his position on 30 August 2000. The applicant denies this, claiming instead that it was not until about 29 September 2000 that he was informed by Mr Phair of the "possibility" that he would be made redundant. According to the applicant it is unclear exactly when he was given notice of his termination of employment. Following the conversation of 3 October 2000 (when the applicant was told that his position would be made redundant on 14 November 2000) the applicant did not receive written confirmation that his position would be made redundant until 3 November 2000. According to the respondent the applicant received 6 weeks and 1 days notice (that is, from 5 October 2000 to 17 November 2000) of termination of employment. The choice of those two dates is derived from the applicant's evidence that on 5 October 2000 he was again verbally advised by Mr Phair that his employment would come to an end on 17 November 2000, and, that no termination pay would be forthcoming. 33 In my view the activities of the applicant in applying for other positions outside the respondent-company are indicative of the commencement of the notice period. Tendered into evidence during the proceedings was a bundle of letters sent by the applicant to various prospective employers, applying for the position of either financial controller or accountant or management positions in the areas of finance and administration. The first of these letters is dated 15 October 2000. This means that at around that time the applicant was on notice that his position with the respondent would be made redundant. Notice therefore had begun to run about 5 weeks prior to 17 November 2000. The applicant successfully obtained employment with Lachley Meats and commenced working there on 23 November. His last day of work with the respondent was 22 November 2000. The applicant therefore lost no days of work as a result of his termination of employment by the respondent. At that time the applicant had worked for the respondent for a period of six months. Given this short period of employment, on one view, a period of notice of 5 or 6 weeks is generous. This circumstance, on another view, may however operate in the applicant's favour. In Hammond v Manildra Flour Mills the applicant's services were terminated after about 2-3 months. Marks J assessed a period of 5 months as reasonable notice. His Honour's reasons for doing so were expressed as follows (at [22]):

I have been influenced to select a period of five months because the applicant's engagement was terminated at an early stage when he had only been working there for a short period. In some respects it might be thought that the converse should apply namely that given such a short period of engagement a shorter period of notice would be reasonable. However there are circumstances where, in my opinion, the termination of an engagement without justifiable cause which occurs shortly after it is entered into should require the assessment of a longer period of reasonable notice. I instance the recent decision of the Full Bench of this Court in King v State Bank of New South Wales [2002] NSWIRComm 353 where the Court on appeal extended the period of reasonable notice from six months to nine months albeit that there was a short period of employment only, given the circumstances which applied in those proceedings.

(See also Murton v T D Preece at [61]). 34 In my opinion the notice period in the present circumstances was adequate. First, for reasons I will expand upon shortly, the applicant's position was made redundant largely because of the loss of the ACP work. The applicant's position was one of a number of positions made redundant following a review of the business by Mr Phair prompted by the loss of the ACP work. Secondly, the fact that the applicant was able to obtain other employment in his field of expertise which he commenced the day after his last day of employment with the respondent (that is, without any loss of employment) suggests that the notice period was adequate. Whether the contract failed to make adequate provision for redundancy

35 It remains to consider whether the contract was unfair by failing to make a reasonable, fair, adequate or just redundancy payment to the applicant. As earlier observed there was no dispute between the parties that the applicant's employment came to an end by reason of redundancy. In my view the evidence is capable of sustaining the inference that one of the principal reasons for this was the loss of the ACP work. The applicant seeks to attribute the blame for the loss of the ACP work to Mr Phair who he says manoeuvred to lose the work because it was financially advantageous to Mr Phair as it improved his cash bonuses. The basis of this contention arises from a conversation that the applicant says he had with Mr Paul Alford, the respondent's business development manager, who informed the applicant of this sometime in about mid-2000. The applicant also says that Mr Phair informed him during several circumstances that he had been placed into a bonus scheme and that the short-term advantage of the loss of the ACP work as well as the closure of the freight forwarding business improved his cash bonuses. This evidence is put forward, as I understand it, to establish a proposition that the loss of business by the respondent as a relevant consideration in the termination of the applicant's employment is inadequately grounded in the evidence. I do not agree. The proposition is based on the views of Mr Alford which are repeated by the applicant in his affidavit. Moreover, according to the applicant's recall of the conversation Mr Alford qualified his view that Mr Phair caused the loss of the ACP work by adding the words, "I don't know whether intentionally or not". These words of qualification provide no foundation upon which it may be reasonably concluded that Mr Phair deliberately or intentionally caused the loss of the work in order to secure a financial advantage. Nor is there any evidence which might provide a link between the loss of the ACP work and the later acquisition by Mr Phair of the remainder books business. The ACP work was lost in July 2000. The remainder books business was not apparently sold until 30 April 2002. 36 The applicant denies that he was paid any monies representing a redundancy payment upon termination of his employment. The respondent claims that the applicant was paid a redundancy payment equivalent to one weeks salary. Even if the respondent's version were accepted I would find that the contract failed to make adequate provision for a redundancy payment and therefore operated unfairly against the applicant. The element of unfairness arises because, as I earlier found, the applicant had formed the expectation, fostered by the respondent, that his employment as financial controller was a long-term engagement. The independent evidence consisting of the advertisement and the letter of offer dated 2 May 2000 tends to confirm that the position was intended to be long-term and deliberately conveyed or presented to the applicant as such by the respondent. No other reasonable inference is available. This makes the relatively short-term of employment, about 6 months, a significant factor in determining that the applicant should receive a payment by reason of the termination of his employment on ground of redundancy and the failure of the contract to so provide. The applicant was a senior employee, experienced in his field of expertise and accorded a high degree of responsibility by the respondent in the position of financial controller. These factors together with the expectation fostered by the respondent that the employment would be long-term, coupled with the actual short term of employment, combine, in the circumstances of the termination, to render the contract unfair. Orders sought

37 The applicant seeks a payment for redundancy equivalent to 12 months remuneration calculated by reference to his base salary in an amount of $105,000. The applicant made no written submissions in relation to an amount the Court may award for a redundancy payment consequent upon a finding that the contract was unfair. For reasons earlier mentioned, namely the applicant's experience, the seniority of his position and its attendant responsibilities, and, most significantly because of the applicant's belief encouraged by the respondent that he would be engaged in long term employment in circumstances where his employment was terminated after only six months, I consider that an amount reflecting three months of his yearly base salary, or $26,250, should adequately recompense the applicant. As explained in Fryar v Systems Services Pty Ltd (1996) 137 ALR 321 at 331, per Von Doussa J, a severance or redundancy payment has as its purpose compensation for the loss of non-transferable credits and entitlements, as well as for inconvenience and hardship imposed by the termination of employment through no fault of the employee. 38 The applicant also seeks a number of other payments as set out in the summons. These include loss of superannuation at 9 per cent at 2 years in an amount of $18,900; allowance for long service leave foregone estimated at $25,000, general damages claimed for costs associated with relocation expenses from Queensland in order to take up the position with the respondent, and estimated relocation expenses from Sydney to "country New South Wales"; and, attempts to obtain alternative employment and/or retraining in a total amount of $7,000. No detail at all has been provided by the applicant which might have enabled the Court to undertake some sort of assessment of the amounts sought or even if the amounts are at all referable to any of the alleged indicia of unfairness. In the absence of any material upon which the Court may undertake an assessment I decline to make any orders. In any event, in relation to long service leave, for example, it would be difficult to justify any entitlement after only 6 months employment. I do not know in relation to superannuation whether the applicant was entitled to be paid any unpaid superannuation guarantee contributions. Certainly the issue was not raised in the summons or at any stage during the proceedings. In relation to the relocation expenses from Queensland to Sydney I have already found that the applicant's decision to move from Queensland to Sydney was made before he applied for the position with the respondent. Such a payment would not therefore be referable to any unfairness in the contract or even to the work performed by the applicant under the contract which is an essential jurisdictional pre-requisite to the making of any money orders. I do not know on what basis, if any, the applicant attempted to obtain alternative employment or retraining which might be referable to any consequential finding of unfairness of the contract. I have already found that the notice period during which the applicant applied for alternative employment, and obtained it, was adequate and did not render the contract unfair. I do not see, and again no basis has been provided, for any justification for payment by the respondent for relocation and other expenses associated with the applicant's employment obtained at Lachley Meats in Forbes. In any event it seems that Lachley Meats met the reasonable relocation costs of the applicant. The letter of offer dated 17 November 2000 made to the applicant by Lachley Meats informs the applicant:

We would pay reasonable relocation expenses for you and your family to move from Thirroul to Forbes. Three quotes would be required. 39 Interest should also be payable on the amount assessed above in relation to a redundancy payment from the date of the application that is from 21 November 2001 until the date of judgment: Abboud v NSW (Department of School Education) (No. 2) (2000) 99 IR 299. Orders

(1) The contract of employment entered into between the applicant and the respondent under which the applicant commenced work as a financial controller for the respondent on 14 May 2000 is declared unfair.

(2) The contract referred to in Order 1 above is varied from its inception to include a term that upon termination of employment for the stated reason of redundancy the respondent shall pay to the applicant an amount of money equivalent to 3 months remuneration calculated by reference to the applicant's base yearly salary of $105,000, being an amount of $26,250.

(3) The respondent is to pay the applicant $26,250 representing 3 months remuneration calculated on the applicant's base salary and payable under the contract.

(4) The respondent is to pay interest on the amount specified in Order 3 above in accordance with Schedule 5 of the Uniform Civil Procedure Rules 2005. The interest shall be payable from the date of the filing of the summons for relief on 21 November 2001 until the date of this judgment.

(5) The respondent shall pay the applicant's reasonable costs of the proceedings. ________________

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