Sukkar v. Video Intercom Pty Limited [2006] NSWIRComm 1088

Industrial Relations Commission (NSW)|2006-04-28

CITATION: Sukkar v. Video Intercom Pty Limited [2006] NSWIRComm 1088

APPLICANT George Sukkar PARTIES: RESPONDENT Video Intercom Pty Limited

CATCHWORDS: termination of employment - claim of unfair dismissal - Practice Direction No.17 - refusal to accept offer of alternative employment - genuineness of offer of re-employment - application refused

LEGISLATION CITED: Industrial Relations Act 1991 Industrial Relations Act 1996

Re Association of Foremen and Supervisors (W D and H O Wills) (1987) 29 AILR Rep.85(7) Burge v. BHP Steel Pty Limited (2001) 105 IR 325 CCH Australia Limited v. Bowen (1998) 79 IR 206 Coles v. Patioland Penrith Pty Limited - unreported Hollingsworth v. Commissioner of Police (No.2) (1999) 88 IR 282 CASES CITED: Leeds and Northrup Australia Pty Limited v. Hull (1992) 46 IR 11 Mann v. Side Cafes Pty Limited - unreported Naylor v. Aboriginal Corporation for Homeless and Rehabilitation Community Services - unreported Nettlefold v. Kym Smoker Pty Limited (1995) 64 IR 169 Oswald v. New South Wales Police Service (1999) 90 IR 42 Russian v. Woolworths (South Australia) Pty Limited (1995) 64 IR 169 Schuck v. Ipec Transport Group (1994) 36 AILR Rep.41

HEARING DATES: 28/04/2006, 18/05/2006, 25/05/2006

APPLICANT Declan Jarrett Bowen and Gerathy, solicitors LEGAL REPRESENTATIVES:

RESPONDENT Lisa Spence Employers First

DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

Application under S.84 of the Industrial Relations Act, 1996

1 Mr George Sukkar was employed by Video Intercom Pty Limited, which is involved in the supply, installation and commissioning of security products. Mr Sukkar commenced employment on Monday, 11 October, 2004 as a technical support engineer but he was subsequently promoted to a position of installations manager. In an application he lodged under Part 6, Unfair Dismissals, of Chapter 2, Employment [Ss.83 to 90] of the 1996 Industrial Relations Act he claimed that he was dismissed on Monday, 14 November, 2005. He initially sought only monetary compensation but his claim has been subsequently amended in that respect.

2 The matter was allocated to Macdonald C by Registry staff who set it down for a conciliation and directions hearing on Thursday, 22 December, 2005. Proceedings were reconvened before him for a report on Friday, 10 February, 2006. Conciliation failed to settle the matter. In accordance with Practice Direction No. 17, Macdonald C directed that Mr Sukkar file and serve witness statements by Friday, 3 March, 2006 and that Video Intercom provide its witness statements by Friday, 24 March, 2006. Any further evidentiary material in response from Mr Sukkar was to be filed and served no later than Friday, 31 March, 2006.

3 Mr Sukkar was represented at that time by Employment Help Services but on Monday, 6 March, 2006 it lodged a notice that it was ceasing to act for Mr Sukkar. There was no compliance by Mr Sukkar with the directions made by Macdonald C. His witness statement was not provided by Monday, 4 April, 2006. The hearing was scheduled for Friday, 28 April, 2006 (before me). But for reasons I will outline shortly in this decision, it did not go ahead as planned.

4 Clause 7(e) of Practice Direction No.17 sets out in considerable detail the procedure to be adopted when there has been non-compliance with directions made by the dismissed employee in Part 6 proceedings, viz:

"In respect of matters where there has been non-compliance with directions the parties will be required to attend the call-over. If at the date of the compliance check call-over there remains non-compliance, the Registrar may remit the matter to a Presidential Member for consideration. The Presidential Member may:

(ii) make such further directions in the matter as necessary, including any direction that further default by the applicant will result in the matter being dismissed; and

(iii) remit the parties and the file to the List Office for action;

(iv) such other directions and orders as may be appropriate."

5 On Tuesday, 28 March, 2006 in the call over hearing, the Deputy Registrar did not refer this matter to a Presidential Member for determination but instead, varied the directions made by Macdonald C. Neither Mr Sukkar nor Video Intercom appeared in the call over. Mr Sukkar was now to file and serve witness statements by Tuesday, 4 April, 2006 (and he did so). Video Intercom was given only eight days to respond with its witness statements - Thursday, 13 April, 2006. Any evidence in reply from Mr Sukkar was to be provided by Friday, 21 April, 2006. The hearing date - Friday, 28 April, 2006 - was not vacated, however.

6 On Tuesday, 4 April, 2006, Employers First, acting on behalf of Video Intercom, had written to the Registrar, noting that Mr Sukkar has been afforded a period of approximately seven weeks in which to serve and file his evidence (whilst Video Intercom was not even provided with two weeks to respond). The letter concluded:

"...We are concerned that the respondent may be significantly prejudiced in this matter if the directions issued by the Registrar on Tuesday, 28 March, 2006 are held to stand. Accordingly, we respectfully request , by consent , that this matter be re-listed for further directions as a matter of urgency..."

On Friday, 7 April, 2006 Staff J considered the programming of the matter in chambers and again varied the directions made for the filing of evidentiary material, ie Video Intercom was now permitted to file and serve its material by Friday, 21 April, 2006 and Mr Sukkar was to respond to that material no later than Wednesday, 26 April, 2006.

7 The file was provided to me on Tuesday, 11 April, 2006. It revealed that the information had been conveyed to Employers First by e-mail and to Mr Sukkar by post on Friday, 7 April, 2006 but because of the numerous changes to the timetable, I was anxious to ensure that both parties were aware of their obligations concerning the hearing. That would particularly be the case for Mr Sukkar, who at that time was apparently to proceed unrepresented in the hearing, and whose advice of the changes to the directions for filing and serving evidentiary material was committed only to ordinary post. I listed the matter for mention on Wednesday, 12 April, 2006 to confirm that both parties were aware of those developments.

8 It is as well I did so as in the proceedings on Wednesday, 12 April, 2006 Mr Sukkar indicated that he had received no notice confirming any change in the directions. Obviously, the advice to that effect had gone astray in the post. I rectified that position and provided Mr Sukkar with copies of the relevant material which he had not been provided by Employment Help Services after it ceased to act for him.

9 The hearing of the matter on Friday, 28 April, 2006 was, actually aborted and adjourned until Thursday, 18 May, 2006. Mr Jarrett, who now represented Mr Sukkar in the proceedings, sought to amend the Part 6 application so that, in the alternative, Mr Sukkar was seeking his reinstatement or re-employment. Ms Spence, of Employers First, represented Video Intercom in the proceedings. Mr Jarrett, who had only recently been engaged by Mr Sakkar, had informed Ms Spence of the intention to amend the Part 6 application on Thursday, 27 April, 2006. Ms Spence had prepared her arguments on the basis of Mr Sukkar's original claim for only monetary compensation. In other words, both Mr Jarrett nor Ms Spence would have benefited from a further delay in the proceedings, in my opinion.

10 In those circumstances, I attempted further conciliation, rescheduling the hearing for Thursday, 18 May, 2006 to allow the parties both the opportunity to consider their respective position on a settlement of the matter by conciliation or, alternatively, for the hearing of the matter to proceed. If my further attempt at conciliation failed, the delay in the matter would at least have given both Mr Jarrett and Ms Spence the opportunity to address the changes made to Mr Sukkar's claim. The further conciliation failed. The hearing of this matter took place on Thursday, 18 May, 2006 and continued on Wednesday, 25 May, 2005 for submissions. In the hearing Mr Jarrett called Mr Sukkar to give evidence and Ms Spence called two witnesses to give evidence: Mr Lloyd Davis, the managing director of Video Intercom, and Mr Ari Koutsougeras, its sales director.

11 Mr Sukkar had provided an affidavit as his response to the evidence adduced by Video Intercom. It was filed and served on Thursday, 27 April, 2006 - one day beyond the deadline set by Staff J. Ms Spence did not take issue with the fact that the material was late: one day is not an issue of any concern, in my opinion. But she did challenge the contents of much of that affidavit as going beyond what was strictly a response to the evidence adduced for Video Intercom. In the circumstances I confined his affidavit only to what could properly be regarded as a response to the evidence of Video Intercom.

12 Ultimately, Mr Sukkar has found alternative employment and he is no longer seeking his reinstatement. His claim therefore reverts to monetary compensation, which was his original intention when represented by Employment Help Services. Particularly in view of the principal issue in dispute in this hearing - whether a genuine offer of reinstatement had been made to Mr Sukkar by Video Intercom and rejected by him or whether that offer was not consistent with Mr Sukkar's employment contract (and something which consequently he could reject) - Mr Sukkar's changing attitude to his claim has led to a somewhat confusing situation which has unnecessarily delayed these proceedings.

13 Mr Sukkar commenced employment with Video Intercom on Monday, 11 October, 2004 as a technical support engineer. He was provided with the sum of $5,000.00 per annum plus a petrol card for him to use his own vehicle in his work. He was subsequently appointed to act in the position of installations manager. He continued to use his private vehicle in the course of his duties until early in 2005 when the vehicle provided by Video Intercom to another service technician who had ceased employment with it was made available to him. Mr Sukkar claimed that he asked Mr Davis if he would now lose the $5,000.00 car allowance and that Mr Davis responded:

14 Mr Sukkar was subsequently informed in late 2005 by Mr Ari Koutsougeras and Mr Nick Dimax, at that time operations manager, that the position of installations manager was "...to be wound down..." and that he was to be engaged as service technician. He claimed that he was promised that he would retain all the benefits which he had been receiving as acting installations manager. He accepted the demotion on that basis. He wrote in the witness statement which provided the basis of his evidence that:

"...it was agreed that I would continue in the role of installations manager whilst that position was to be wound down. It was agreed that I would assume the role of service technician gradually as the need arose for this type of work. I, in fact, commenced doing this work of service technician when I worked one week on standby for after-hours service..."

15 On Friday, 7 October, 2005 Mr Sukkar was involved in a motor vehicle accident in the course of his employment. He was absent from work for two weeks and he remained on light duties for a further two weeks. When he returned to work he observed that somebody, whom he understood to be Mr Koutsougeras, to had written on the whiteboard at the place of work:

Which offended him. (Mr Koutsougeras admitted that he had written those words on the whiteboard. He claimed that when Mr Sukkar had returned to work following his injury he was "down" and he was simply trying to cheer him up with a bit of dark humour. Mr Sukkar obviously did not see the joke: neither do I. If someone was "down", taking a rise out of them would not help, in my opinion.)

16 A month later Mr Koutsougeras called Mr Sukkar to a meeting and told him:

"We have changed our mind about giving you the role of service technician. We now want you to work as an installation technician."

A letter dated Monday, 7 November, 2005 had been prepared under the letterhead of Video Intercom outlining the offer to Mr Sukkar, viz:

"...We have much pleasure in confirming our offer of employment to you with Video Intercom...for the position of installation technician on the terms set out in this letter of offer... Your start date is Monday, 14 November, 2005. You will report to Mr Koutsougeras and you will perform your duties at the company's Rozelle premises or on a building site as the company may reasonably require. This appointment is subject to a three month probationary period during which your suitability for the position will be assessed..."

In his evidence Mr Sukkar claimed that he was concerned over the conditions of his employment - the loss of the use of the company vehicle, the probationary employment and his fitness to perform the work having regard to his injury.

17 Mr Sukkar reminded Mr Koutsougeras that he had been promised the position of service technician and Mr Koutsougeras replied:

"Whilst you were away, we employed someone else to work in that position as a service technician.

"That's not fair. You promised me that position. I feel like I am being victimised because of the accident."

18 Mr Koutsougeras asserted that the only position for Mr Sukkar was the position of installation technician and he was told at a further meeting with Mr Koutsougeras on Monday, 14 November, 2005:

"If you do not sign your acceptance on the letter, your position will be terminated."

"Can you terminate my position while I am on light duties?"

19 Mr Koutsougeras asked Mr Sukkar to leave the premises immediately. Mr Sukkar refused to do so until his position was clarified. Mr Koutsougeras provided the following letter to Mr Sukkar:

"...Please be advised that due to a downturn in installation work..., the role of installation manager has been made redundant effective from Monday, 14 November, 2005. Further to the above, we offered you the role of installation technician which you have declined to accept and have chosen to be made redundant. On the next pay day, you will be paid up to Monday, 14 November, 2005 + 4 weeks notice + any other entitlements you have with Video Intercom..."

Mr Sukkar's workers compensation subsequently ceased. As I understand the position, his claim for workers compensation remains unresolved. But it appears that he is now fit for work.

20 In the written statement that Mr Koutsougeras prepared to form the basis of his evidence, he spoke of a slow down in construction activities in late 2005. Two of the three projects in which Video Intercom had been involved at that time were almost at completion but the remaining project had still 18 months work on site. A further two projects were procured but they required at least 3 or 4 months of initial planning before approximately 12 months of work on site. Consequently, Mr Koutsougeras spoke to Mr Sukkar and informed him that there would be organisational changes and that he would be taking over the responsibilities that had formerly been performed by Mr Dimax. Mr Koutsougeras recorded in his written statement that:

"...at this meeting Mr Sukkar expressed to me his desire to become a service technician. It was agreed between Mr Sukkar, Mr Dimax and I that Video Intercom would assist Mr Sukkar and attempt to train him to be a part of the service team at some point in the future and as the need arose. To my knowledge, Mr Sukkar had previously attended two courses in August, 2005 to attain the requisite skills. These courses were the Basic Concept Installation Course and the Basic Concept Programming Course. Mr Sukkar passed the first course. However, he failed the second and most important course and therefore did not possess sufficient skills to take on the role (of service technician) at this time."

Then Mr Sukkar's motor vehicle accident occurred. (Mr Koutsougeras indicated in his written statement that, as he understood the position, that accident occurred on Friday, 7 October, 2005. Mr Sukkar had originally claimed that the accident occurred on Friday, 14 October, 2005. Not a great deal appears to me to turn on that discrepancy in this hearing, however, and in his evidence Mr Sakkar accepted that the accident happened on Friday, 7 October, 2005.)

21 Mr Koutsougeras recorded in his written statement that on Monday, 31 October, 2005 he:

"...met with Mr Sukkar to discuss his return to work as it was his first full day back after his accident. At the meeting I provided Mr Sukkar with (the plans for one of the new projects). This incorporated calculating cable requirements, lengths and additional component requirements, planning the job in terms of resources and duration of work and was in accordance with both his return to work plan and his role as installation manager.

During the meeting, I also discussed with Mr Sukkar that the planning of (the first project) was to be followed by planning for (the second project). This was perfect work for Mr Sukkar as he had at least 3 months planning work which was both part of his ordinary role as installation manager and in accordance with his return to work plan. Even if the accident had not occurred, Mr Sukkar would still have been required to undertake this planning role up until at least February, 2006 when the onsite work was scheduled to begin..."

22 Mr Koutsougeras claimed that at the meeting he spoke to Mr Sukkar in the following terms:

"We don't have enough work to support an installation manager role at this time; we would like you to go back into the field as an installation technician just until things pick up again. This means that rather than manage many projects, you will have the opportunity to manage one to three projects in close proximity to each other where you will be doing the work and managing the job site. It won't affect your current salary or any of your working conditions. It will just mean that for a short time and until we picked up more work, you will be spending most of the time on site than in the office."

"I would like to have a revised letter of employment for the role of installation technician. If I'm not happy with the restructure and revised letter of employment I might consider leaving."

23 Mr Koutsougeras did not want Mr Sukkar to resign. He agreed to provide a revised letter of employment to him and that was e-mailed to him on Friday, 4 November, 2005. He again met with Mr Sukkar on Thursday, 10 November, 2005 to clear up some confusion over the proposed arrangements. At the meeting Mr Sukkar asked if he could be moved to a service technician role but Mr Koutsougeras responded that such a position was not available to him, viz:

"We were looking to move you to a role in the service department in the short to mid term and, after months of in-house training. However, when we advertised for installers we came across an exceptional candidate who fitted perfectly into the role of service technician, who would do so with very little training and who would hit the ground running. So we offered him the job of service technician. You still require a lot of work with access control and intercoms fault finding and we cannot afford to invest in that training in the short term since we have not developed a critical mass in service sales. It is still our intention to train and move you into this area as soon as we develop this critical mass in sales."

Mr Koutsougeras recorded in his written statement that:

"...rather than make Mr Sukkar redundant, I believed he was a valuable employee with skills that we need in the installation department. I offered Mr Sukkar the role of installation technician, running two jobs and without changing his salary structure or conditions of employment. The only change was to his start and finish time as it must be in line with construction work schedules for each site..."

24 Mr Koutsougeras provided Mr Sukkar with the letter dated Monday, 7 November, 2005 outlining the role that Video Intercom had for him. Mr Sukkar asked for time to consider his position but on Monday, 14 November, 2005 he informed Mr Koutsougeras that he was not prepared to accept the offer, viz:

"I can't accept this role of installation technician on the basis that the job hours and travel requirements to get to the site would not suit my family life."

Mr Koutsougeras claimed that Mr Sukkar did not raise the question of probationary employment which was contained in the letter as an area of concern. He asserted that he was only copying a standard letter in that respect and, if Mr Sukkar had raised concerns over the probationary nature of employment in his discussions with him, he would have deleted reference to it. I accept that in the circumstances the reference to a probationary period was simply an error. 25 Mr Koutsougeras was prepared to be more flexible over the hours of work to accommodate Mr Sukkar but Mr Sukkar responded:

"I feel I would be going backwards accepting this role."

And Mr Sukkar did not accept the new role, pressing for the position of service technician that he claimed he had been promised. Mr Koutsougeras informed Mr Sukkar that the role of service technician had not been promised to him. All that had been agreed was that efforts would be made to move him into that role as the need arose. An immediate position of service technician had been occupied by an employee whom Video Intercom claimed had excellent qualifications and experience which they could not afford to overlook. Mr Koutsougeras directed Mr Sukkar to continue the work on the two projects on which he had been engaged but, according to Mr Koutsougeras, Mr Sukkar pressed to be either given the job as service technician or his original job as installation manager.

"If you're not going to work on these projects then we have no work for you and you will have to leave."

Mr Sukkar asked for written confirmation of that position and Mr Koutsougeras gave him the letter to which I have referred earlier in this decision. Mr Koutsougeras requested that Mr Sukkar return his keys, mobile telephone and charger and Mr Sukkar handed them over, said goodbye to the other staff and left the premises.

27 Mr Davis recruited Mr Sukkar as a technical support engineer pending further technical training in late 2004 and approximately one month later he offered Mr Sukkar the position of installation manager, which he accepted. Mr Davis recorded in a written statement which formed the basis of his evidence that:

"...Mr Sukkar's new role required that he report directly to Mr Dimax, now operations manager. His terms and conditions of employment were to remain the same, with the exception that he was paid an additional allowance of $5,000.00 per annum for maintenance and use of his own motor vehicle for work purposes plus he was given a company petrol card for petrol. Mr Sukkar's duties were to manage the installation workforce, including employees and contractors, to manage materials, quality and job budget, including customer relations and satisfaction, and to forecast materials purchases and raise orders for approval..." But, according to Mr Davis, Mr Sukkar experienced some difficulties in his new role. Consequently, in the middle of 2005 Mr Davis sent Mr Sukkar on a number of training courses but he believed that Mr Sukkar was not showing any real improvement in his work. Subsequently Mr Sukkar said to Mr Davis that he would like to be a service technician. Mr Davis arranged for Mr Sukkar to attend two courses - a one day Basic Concept Installation Course (which he passed) and a three day Basic Concept Programming Course (which he failed). As such Mr Sukkar did not possess the skills required for the position of service technician.

28 Mr Sukkar took up the planning duties on two projects. Mr Sukkar's motor vehicle accident occurred (on Friday, 7 October, 2005 according to Mr Davis) and made a claim for workers compensation in relation to his injuries. Mr Davis indicated in his written statement that:

"...during the period of Mr Sukkar's absence from work, a return to work plan was developed for Mr Sukkar and was implemented on his return. The return to work plan required that Mr Sukkar undertake 'suitable duties' which included administration duties only and which was, in essence, the planning duties in accordance with his pre-injury role as installation manager...". The (two projects) were in the initial planning stage only. This meant that there was no requirement for any duties on site and all duties would be administrative in nature. Accordingly, Mr Sukkar would have performed the same duties, even if he had no injuries..."

29 Mr Davis was, in fact, absent from work when Mr Sukkar's employment with Video Intercom came to an end. He reviewed the situation. In his written statement he recorded that:

"...the language used in the termination letter was not reflective of the true situation and may have lead to some confusion. It is my understanding that Mr Sukkar was terminated as a result of his refusing to follow reasonable directions and refusal to undertake his duties. He was not made redundant. Nor was he required to perform duties inconsistent with his return to work plan... It was my understanding that the job title was not the issue. Mr Sukkar's position had not changed. He was to be working in the office from October, 2005 to February, or March, 2006 in charge of...sites planning the system, getting the jobs ready for on site work to commence... Mr Sukkar was aware prior to the accident that he would be required to undertake this planning as part of his role and that there was no requirement for any duties on site. I immediately took steps to rectify the situation and offer Mr Sukkar his job back..."

30 Mr Davis wrote a lengthy letter to Mr Sukkar on Thursday, 24 November, 2005 outlining the position taken by Video Intercom, viz:

"...I am writing to express my regret at the situation we now find ourselves in; I had hoped we would have a long and fruitful relationship. I would like to make absolutely clear that the motor vehicle accident you were involved in has no bearing or relationship to any events that have occurred past the accident. Furthermore, I wish to make clear that the offer of a suitable position, installer running two jobs, is still on offer to you.

I would draw your attention to the following points which may serve to clarify some issues expressed in your letter:

You were employed as a technical support engineer with the understanding that you would work as an installer for a period of time until you gained experience and expertise in the products and services. We understand you were a qualified technician and had a high degree of technical expertise to leverage into the role, thus making the initial training somewhat of a formality. You had also extensive experience as a foreman and project co-ordination experience from Telstra and others that would in a large way qualify you for the roles you undertook for Video Intercom. In accepting the role, you did so on the understanding that you used your own vehicle and were prepared to work on any of our job sites around Sydney, as directed.

We have endeavoured to provide on the job training which has not resulted in you achieving a suitable skill level to be able to support our product in the field.

We have paid your attendance at external courses and released you at full pay to increase your skills and knowledge: we are not aware of your having satisfactorily passed these courses.

I have conducted skill workshops with you and you have not applied yourself to the task of learning nor have you been able to demonstrate appropriate level of competence in the fields of expertise expected for the role.

In promoting you to the role of installation manager you failed to fulfil the role effectively and further failed to support the company in control of the workforce under your control. We have had numerous counselling sessions and we have attempted to mentor you into the role but to no avail. You agreed your performance was not up to par and willingly accepted that your position needed to change.

We offered you the position to rejoin the service department as a serviceman, pending your skills upgrade and being able to do the work. Your failing the Concept course we sponsored you to attend meant that your skill level was such that you were not able to perform the duties expected of a service and support engineer and could not fulfil the expectations of a member of that team.

Mr Koutsougeras offered you the role of installer running two job sites... This is a significant responsibility and not outside your skill level as we saw it. You have performed this role in your running of (one site already). You refused to accept this role in spite of Mr Koutsougeras indicating the flexibility of working hours we were prepared to offer. Thus your working hours could remain as they were.

I gave you the temporary use of the company car to avoid the vehicle sitting long term in the car park. We paid you a car allowance to maintain your vehicle as required and understood it would be available as before when required after the car was reassigned. I explained clearly this vehicle's use was a loan until a suitable service technician was employed. When we again required the car you stated that you had sold your vehicle and could not return the company's vehicle without impacting your ability to perform your role. It transpires that you were, in fact, collecting the car allowance dishonestly and, while we were prepared to pay this amount on the understanding you had the vehicle, your disposing of the vehicle breached our understanding.

As a result of this breach, we now require the paid vehicle allowance refunded. I will provide you with the detail of the amount in your next pay slip.

On your return to work after the accident, the car was reassigned to the new serviceman who required it to perform his job function. Considering you could not perform any role in the organisation except light duties, and the company vehicle was not part of your overall package but connected to the service role, there was no requirement to return this vehicle to you.

Mr Koutsougeras offered you the new role at the same pay rate as your previous role and gave you a revised letter of offer only to give absolute clarity to the role.

In light of the above, we cannot offer the role of serviceman to you as you do not possess the skill nor does it appear that you would be able to acquire this skill in the foreseeable future. We do recognise your skill in installation and this position was offered. Mr Koutsougeras' use of wording was unfortunate but you must acknowledge that you refused a reasonable direction and, as part of the original employment agreement, you agreed to work on any of our sites. Thus Mr Koutsougeras dismissed you for failing to follow a directive and no other reason.

However, we would like to continue to have you as a member of the Video Intercom team and utilise your skills in the role on offer. I urge you to reconsider your position... We are still prepared to have you run these jobs for us. I need to know your position by Wednesday, 30 November, 2005..."

31 Employment Help Services lodged Mr Sukkar's Part 6 application on Tuesday, 29 November, 2006. The offer remained on the table during the proceedings before Macdonald C. Indeed, the offer only really lapsed on Monday, 27 March, 2006 when it became necessary for Video Intercom to fill the position. In the meantime, a number of attempts were made by Video Intercom to arrange for the re-engagement of Mr Sukkar but they fell on stony ground. It is pity that more efforts were not made in exploring the conditions under which there could be a return to work by Mr Sukkar. It would appear to me that efforts in that respect may have resolved this matter to the satisfaction of both Video Intercom and Mr Sukkar.

32 In the formal response to Mr Sukkar's Part 6 application, Video Intercom assert that Mr Sukkar was not actually dismissed or his substantive position made redundant. It wrote in the statement which accompanied that formal response:

"...A suitable position commensurate with his skill, knowledge and experience was offered on Monday, 7 November, 2005, Monday, 14 November, 2005 and again in writing on Thursday, 24 November, 2005. He has consistently refused to perform the duties of this role and accept the role..."

"...Video Intercom acknowledges that the situation was not handled in the most sensitive or informed manner and express regret and apology to Mr Sukkar.... There was no intent to change Mr Sukkar's terms of employment, only his duties, and consistent with the nature of a field operator, the location of his work. This information was conveyed to Mr Sukkar repeatedly..."

33 It has been the consistent view of the Commission that reinstatement or re-employment is to be preferred over monetary compensation [Leeds and Northrup Australia Pty Limited v. Hull (1992) 46 IR 11 at p.15, CCH Australia Limited v. Bowen (1998) 79 IR 206 at pp.217 and 218, Oswald v. New South Wales Police Service (1999) 90 IR 42 at pp.67, Hollingsworth v. Commissioner of Police No.2 (1999) 88 IR 282 at pp.341 and Burge v. BHP Steel Pty Limited (2001) 105 IR 325 at pp.345 and 346]. Mr Jarrett submitted that the offers made by Video Intercom to Mr Sukkar were not genuine. But I am satisfied that the offers to re-engage Mr Sukkar were, in fact, genuine on the part of Video Intercom. Mr Lloyd and Mr Koutsougeras have reaffirmed that they regarded Mr Sukkar as a valued employee and wanted him to return to work for them.

34 I accept that there may be instances where an employer's offer of reinstatement may be disingenuous and simply designed either to avoid what it sees is an inevitable payment of a sum of money to the employee it dismissed unfairly or to make sure that the employee's dismissal is effected properly at a later date. A dismissed employee is entitled to resist such an offer. But unless an employee is able to demonstrate that the offer of reinstatement is not bona fideor that the restoration of the employment relationship is impracticable, then any Part 6 claim he makes is resolved when the offer of reinstatement is held out to him.

35 That was the view I took in my unreported decision of Monday, 31 July, 2009 in Coles v Patioland Penrith Pty Limited [Matter No.IRC 501 of 2000]. In Coles v. Patio Land Penrith Pty Limited, part of the difficulties in the restoration of an effective employment relationship had been due to the conduct of the dismissed employee but, as I indicated in my decision (at p.10):

"…An employee should not benefit from action which, in effect, serves to poison the well…"

"…any reinstatement following a dismissal will produce some level of difficulties and disharmony at the place of work. It is a question of degree whether such difficulties or disharmony reaches the point where reinstatement becomes impracticable. Embarrassment is certainly not enough to tip the scales against reinstatement…"

I also note the unreported decision of Cambridge C on Friday, 15 June, 2001 in Naylor v. Aboriginal Corporation for Homeless and Rehabilitation Community Services [Matter No.IRC 4828 of 2000], to which Ms Spence referred me, to similar effect. I see this matter in the same light. The word in S.89(5) is "impracticable" - meaning "unworkable", "inexpedient" or "unrealistic" - not "impossible". And that matter should be addressed in a common sense way. There should have been no real difficulties in restoring an employer/employee relationship between Mr Sukkar and Video Intercom.

36 Of course, no remedy would be available to an employee under Part unless he were dismissed in the first place. S.84(1), a pivotal provision in Part 6, makes that clear, viz:

"If an employer dismisses an employee and the employee claims that the dismissal is harsh, unreasonable or unjust, the employee may apply to the Commission for the claim to be dealt with under this Part."

37 As her starting point, Ms Spence had originally accepted that Mr Sukkar was dismissed from employment with Video Intercom but in her final submissions she refuted that claim, asserting that by refusing to accept the offer of reinstatement held out to him almost immediately after his employment with Video Intercom was terminated, it is really Mr Sukkar who brought his employment to an end. It is in that light that Mr Jarrett has argued that Mr Sukkar was, in fact, constructively dismissed, ie he was being either "squeezed out" of employment so that he had no choice other than to abandon his employment [Nettlefold v. Kym Smoker Pty Limited (1995) 64 IR 169] or simply refusing to accept a unilateral decision of Video Intercom to accept a variation of his contract of employment to his detriment [Russian v. Woolworths (South Australia) Pty Limited (1995) 64 IR 169]. Mr Jarrett further submitted, in the alternative, that if I concluded that Mr Sukkar had not been constructively dismissed, then the termination of his employment was a retrenched - and his claim for monetary compensation would be in the nature of severance pay.

38 On its face, Mr Koutsougeras' letter of Monday, 14 November, 2005 would appear to confirm the fact that he was actually dismissed - retrenched. But I consider that Mr Koutsougeras' letter must be considered in the context of the conversation he had with Mr Sukkar, and the clarification that came on Thursday, 24 November, 2005 with Mr Lloyd's letter. Notwithstanding the initial views of Ms Spence to the contrary, I am not satisfied that it was really Video Intercom which initiated the termination of Mr Sukkar's services. It was Mr Sukkar's refusal to accept the position offered to him which actually brought his employment to an end, frustrating his contract of employment.

39 The question remains whether or not the work that Mr Koutsougeras had provided for Mr Sukkar was properly within the range of duties expected under his contract of employment. A change from one job to another may, in some circumstances mean such a fundamental change in the contract of employment as to constitute a "dismissal" for the purposes of Part 6 [Schuck v. Ipec Transport Group (1994) 36 AILR Rep. 41]. In my unreported decision of Tuesday, 7 May, 1996 in Mann v. Side Cafes Pty Limited [Matter No.IRC 413 of 1996] I commented (at pp.3 and 4) that:

"…(the respondent employer) asserted in the hearing that, since (the applicant employee) had been offered alternative work and had declined that work, the termination of his services was not a dismissal for the purposes of (the equivalent to Part 6 in the 1991 Industrial Relations Act). The fact is that the transfer of (the applicant) to the work at the Narrabeen cafe involved a substantial reduction in salary for him, ie it was, in effect, a demotion. Is such a demotion categorised as a dismissal…? I believe that it was…

Much now depends upon whether a demotion constitutes such a break in the contract of employment, and its replacement with another contract of employment, so as to constitute a dismissal… That will depend upon the facts of each case. In this case I hold no doubts that it did. (The respondent) was unilaterally changing the terms of the original contract of employment for (the applicant) to (his) detriment and against (his) wishes…"

40 But in this case, as far as I can see, Mr Sukkar was not being reduced in rank or receiving a lesser remuneration. In Re Association of Foremen and Supervisors (W D and H O Wills) (1987) 29 AILR Rep. 85(7) Macken J of the former State Industrial Commission expressed the view that a loss of status for an employee in a transfer from one part of a plant to another without reduction in wages would not normally attract the intervention of a State industrial tribunal in favour of that employee. An employer is always entitled to retain the right to move staff to other positions within its organisation within the range of work expected of that staff.

41 Mr Sukkar was appointed initially by Video Intercom as a technical support engineer. He was subsequently promoted to the position of installations manager but the job offered to him of installations technician, as I see it, was consistent with his original contract of employment with Video Intercom. It was only a temporary measure, in any event, consistent with his return to work programme following his injury. Mr Sukkar may have had some expectation that he may be appointed to the position of service technician in due course, but any promise that had been made to him in that respect would have to be conditional upon his being qualified to perform the work in question. At the time of the termination of his services that was not the case.

42 It is most unfortunate that Mr Sukkar's Part 6 application initally sought only monetary compensation. Whether that was his original choice or whether he was influenced in making that choice by Employment Help Services - I suspect the latter - that decision was not really in his best interests. It would have been better had he explored and clarified the offer of work which was on the table for him. Video Intercom clearly regarded Mr Sukkar as a valued employee, wished to retain him in employment and was prepared to meet concerns Mr Sukkar may have over the new role that had been mapped out for him. All of its offers in that respect went begging. 43 But in the circumstances, I see no grounds for my intervention in support of Mr Sukkar in this hearing. I believe that I have no alternative but to dismiss his Part 6 application and I do so. Ms Spence foreshadowed an application for costs. I reserve her position (and that of Mr Jarrett) as to costs.

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