Tsilibakis v Transfield Services

Federal Court of Australia|2015-07-21|Before: Gray J, White J

The applicant's credibility 78 There were other matters which caused me to have doubts about the reliability of the applicant's evidence generally. On 19 July 2013, the applicant asked Mr Vigus for clarification of the circumstances in which team leaders may be held ultimately responsible for the actions of their teams, and whether the undertaking of the investigation of complaints and the actions which may follow depended on the manner in which they were made. Mr Vigus provided a response by return email. Mr Vigus confirmed that a complaint did not have to be in writing before action could be taken on the complaint, including written warnings or termination, and went on to say that the outcomes of a complaint requested by a complainant would not necessarily have a bearing on the final action taken, and gave an example of why that was so. The applicant responded on 23 July 2013 saying: Thanks for getting back to me on this. All good common sense answers which align with my thinking. He then went on to make a recommendation as to education within Transfield on one of the matters. 79 The applicant was asked in cross-examination about what he had meant by the term "which align with my thinking". In my opinion, his answers were unrealistic and seemed to reflect an attempt to distance himself from his contemporaneous endorsement of the reasonableness of Mr Vigus' approach. The applicant drew a highly artificial distinction between his "thinking" and his "understanding", as the following excerpt of his evidence indicates: Q: Well, you've said there that it aligns with your thinking. Doesn't that suggest that what Mr Vigus has said is what you already knew? A: No. Q: Well, what does it mean? A: It means that I [was] requesting clarity. It means that according to the Quality and Diversity Policy within Transfield that we had toolbox meetings around, your Honour. There was a chart system, or a flow chart, I usually call it which was a process to go through for complaints and final written warnings. Q: Mr Tsilibakis, what does "which align with my thinking" - what did you mean by that? A: What did - I meant that I didn't understand it to be that, I thought it might that. It's my thinking, it's not my understanding. ... Q: Well, what did you mean by "which aligns with my thinking" then? A: I think my difference is between my understanding which was the process that needed to be followed, your Honour, and the process that was outlined and part of Transfield's corporate process, I guess you would call it. My thinking was different to my understanding. My understanding was that there needed to be a formal written complaint according to the Quality and Diversity Policy that was within Transfield and the toolboxes. My thinking was different but my understanding was that it needed to be aligned to that. 80 Another passage in the evidence which did not reflect well on the applicant related to his evidence about his knowledge of the general protections provisions in the FW Act. The applicant said in cross-examination that he was aware as early as January 2013, that there was a risk that his position may be made redundant. He then gave the following evidence: Q: Were you also aware at that time of the general protections provisions in the Fair Work Act? A: I don't believe so, no. Q: Were you aware at that time that if you made a complaint and then suffered adverse action, that a reverse - there's a reverse onus that switches to the employer to prove they didn't take that action [because] of the complaint? A: No. Q: You weren't aware of that? A: No. 81 However, only one year earlier (on 30 January 2012), the applicant had brought proceedings in the Federal Magistrates Court against a firm named Cadgile, in which he alleged that his employment had been terminated because of his exercise of workplace rights in initiating a bullying and harassment complaint against Cadgile's Managing Director. The proceedings in the Federal Magistrates Court were resolved by a negotiated settlement in June 2012. The applicant's legal representative in the present proceedings also represented him in the proceedings against Cadgile. In those circumstances, I consider it implausible that the applicant was unaware of the potential for him to bring proceedings against Transfield in the event that his employment was terminated following his making a complaint and was unaware of the fact that Transfield would have the onus of showing that the termination was not by reason of his having made the complaint. 82 It is not to the applicant's credit that on several occasions, and without authority to do so, he forwarded on to his private email address the business emails of Transfield, simply so that he could have a record of them. 83 There were other aspects of the applicant's evidence which did not speak well to his credit. I have already given one example of the applicant's evidence on a topic being selective. Somewhat remarkably the applicant did not provide as part of his own evidence his formal complaint of 28 May 2013, or Mr Vigus' report of the outcome of his investigation of that complaint. There were several other instances. 84 All in all, I did not at the time of trial regard the applicant's evidence as being generally reliable. That view has been confirmed on re-reading the transcript of evidence. I consider that care should be exercised before acting on the applicant's evidence when it is not supported by contemporaneous documentary evidence or is disputed.

Credibility of witnesses - general 85 The applicant did not lead evidence from any other witnesses. 86 Transfield adduced evidence from Mr De Angelis, Mr Kerswell, Mr Vigus, Mr Rynja, Mr Hall and Mr Handy. 87 I have referred already to my assessment of the evidence of Mr Vigus. 88 I regarded the evidence of both Mr De Angelis and Mr Kerswell as honest and reliable. They gave their evidence fairly and with care. Mr Kerswell readily acknowledged that there were some matters about which he was uncertain and conceded that his understanding may have been wrong in some instances. 89 Mr Handy did not contribute to the decision to make the applicant redundant but was involved in its implementation. I formed a favourable view of his evidence. It would have been understandable if Mr Handy had been defensive or affected by antipathy towards the applicant, as he acknowledged that his working relationship with the applicant had been difficult. Other evidence indicates that there was unpleasantness between the two men. However, Mr Handy's evidence was marked by fairness and he readily made concessions which favoured the applicant's case. I regarded his evidence as reliable. 90 I considered that there was a certain defensiveness and a tendency to generalisation in Mr Hall's evidence. On some matters his evidence was inconsistent with that of other Transfield witnesses. This led me to have less confidence in his evidence on matters of detail. I had the impression that Mr Hall, possibly with some justification, had come to regard the applicant as something of an irritant. In particular, he shared the concerns of other Transfield employees about the working relationship between the applicant and Mr Handy. Accordingly, although I formed a more favourable view of Mr Hall's evidence than I did of the applicant's, I still consider that care is needed before acting on his evidence. 91 I regarded Mr Rynja's evidence as generally reliable. I was a little troubled by the fact that it did seem that once he had decided that the applicant should be made redundant (which decision seems to have been made at an early stage) he may not have considered other alternatives, or to have required close attention to Transfield's own procedures. However, despite these reservations, I considered Mr Rynja's evidence about his reasons for recommending the applicant's termination, and the manner in which it was carried out, to be generally reliable.

The termination of the employment 92 The termination of the applicant's employment was effected by Mr Hall and Mr Rynja. 93 At about 9.00am on 9 August 2013, Mr Hall asked the applicant to come to a separate room. Mr Rynja was already present. 94 Mr Hall informed the applicant that, following an ongoing review of Transfield's structures with a view to lowering costs and improving efficiencies, his role as Recruitment Lead for the Santos CMS Contract had been made redundant, and that this meant that his employment was being terminated immediately. The applicant asked some questions about why he was being made redundant while his two team members who were contractors were continuing, and stated his belief that he was being made redundant because of his complaint of bullying and harassment against Mr Handy. 95 At the same time Mr Hall handed to the applicant a letter confirming his oral statements and providing further information relating to the termination. 96 There were some differences in the respective accounts of the applicant, Mr Hall and Mr Rynja as to what occurred during the termination discussion and immediately afterwards until the applicant left the building, but it is not necessary for findings to be made about that.

The reasons for the termination 97 The applicant's principal case was that Transfield had terminated his employment because of his exercise of his workplace right in making the First Complaint, that is, the complaint of bullying and harassment against Mr Handy. He also invoked other limbs within s 342(1) Item 1 but I will address those separately. 98 As noted, s 361 of the FW Act has the effect that it is to be presumed that Transfield terminated the applicant's employment because of his exercise of the workplace right relied upon, unless Transfield proves otherwise. 99 The very coincidence in time of the applicant's complaint and the termination of his employment suggests that Transfield's evidence concerning the reasons for the termination of the applicant's employment should be scrutinised carefully. The fact that a number of the persons contributing to the recommendation were aware of the First Complaint adds to the need for this scrutiny. 100 The decision to terminate the applicant's employment was one to which a number of people contributed, although Mr De Angelis was the ultimate decision-maker. Transfield adduced evidence from each contributor.

The reasons for the decision of Mr De Angelis 101 The events culminating in the termination of the applicant's employment commenced in early June 2013. This was very soon after the applicant had lodged his formal complaint on 28 May. I make the following findings concerning those events. 102 In early June, Mr Rynja and Mr Hall commenced discussions about the workload of recruiters on the Santos CMS Contract and about means by which savings could be obtained on that Contract. Mr Rynja told Mr Hall that he thought that Transfield's National Recruitment Team had the capacity to perform the recruitment function, rather than having a dedicated team for that purpose. Mr Hall was willing to entertain the idea but wished to be satisfied that it would not result in any diminution of the service. Mr Rynja demonstrated to Mr Hall how the recruiting requirements for the Santos CMS Contract could be managed by the National Recruitment Team. He said that he considered that savings would be made if the National Recruitment Team carried out the recruitment function, being the saving of the wages paid to the applicant and to one of the two contract workers. 103 Mr Rynja said that as part of the assessment he obtained so called "dashboard reports" which indicated that the recruitment team on the Santos CMS Contract was filling significantly less than 20 roles per month on average. Other evidence indicated that each recruiter could be expected reasonably to manage recruitments of that order. The applicant disputed Mr Rynja's figures, saying that the average of his team was "30 plus" and that in the financial year ending on 30 June 2013, the team had filled 260-280 positions. Neither party tendered documentary evidence of these matters. In his affidavit, Mr Rynja deposed that, since August 2013, the National Recruitment Team had recruited 67 roles for the Santos CMS Contract, that is, just over 6 roles per month. He said that work involved was "not nearly enough work to sustain a full-time recruiter". That evidence was not challenged. 104 Furthermore, Mr Rynja deposed that when the National Recruitment Team assumed responsibility for recruitment for the Santos CMS Contract, there were only nine roles to be recruited. That evidence was corroborated by an email he sent to a member of the National Recruitment Team on 9 August 2013. This evidence was not challenged. It is inconsistent with the level of recruiting asserted by the applicant and tends to confirm the reasonableness of the assessment that the recruiting function could adequately be carried out by the National Recruitment Team. 105 Mr Handy deposed that recruitment generally within Transfield had been quieter in the months preceding July 2013 than it had been in July 2012 and described the demand for recruitment on the Santos CMS Contract as "steady". 106 On the other hand the applicant deposed that on 9 August 2013, his team was recruiting 33 roles for the Santos CMS Contract and would be recruiting a further 20 roles for a shutdown to take place in October 2013. The applicant did not adduce documentary evidence to support that position. He acknowledged in cross-examination that recruitment was "slowing up" and that he had been concerned that the employment of one of the two contract workers on his team would not be continued. He had tried to expand the duties they performed in order to promote their job security. Furthermore, the applicant had been worried in January 2013 that his own position may be made redundant. 107 Reviews by Transfield which result in redundancies do not seem to be uncommon. Several witnesses spoke of the continuous reviews, especially in 2012 and 2013. Mr Kerswell deposed that in the financial year ending 30 June 2013, Transfield had made 359 positions redundant and, to May 2014 in the 2014 financial year, 583 positions redundant. 108 In all these circumstances, I accept Mr Rynja's evidence about his assessment of the situation in June and July 2013. 109 Later in June 2013, Mr Rynja spoke to Mr De Angelis and Mr Kerswell about the proposal to transfer the recruitment function from the Santos CMS Contract to the National Recruitment Team. Mr Kerswell then wrote to Mr De Angelis on 24 June 2013 saying: I have been reviewing the resourcing across the business, as you do in these instances and found a couple of items I recommend you review. Bluescope: ... Santos: I understand Ben has been having discussions about the sourcing workload and where the recruitment sources sit from a budget/team perspective with Lou. We all recognise sourcing people is an area we need to continue to strive to improve, but I understand the workload should be manageable for a single recruiter based on the current forecast. The model we work in the central team is each recruiter on average should fill about 20 roles a month, this is an average not an absolute as there are reasons why it may be greater or less than this. Given these numbers and the fact that currently Santos have two recruitment resources in Maureen Ginting and Anthony Tsilibakis in the contract, I would recommend that you ensure one resource moves into our central recruitment team (Maureen) and you could make the other role redundant (Anthony). The effect of Mr Kerswell's recommendation was that the recruitment work on the Santos CMS Contract be undertaken by the National Recruitment Team and that the applicant be made redundant. 110 As can be seen, the context in which Mr Kerswell made his recommendation to Mr De Angelis was one of a review of recruitment resources generally. It was not focused on the Santos CMS Contract only or on the applicant. There is no suggestion in the email that the absorption of the Santos recruiting function into the National Recruitment Team should occur for some extraneous purpose, such as creating a circumstance in which the applicant's position could be made redundant. 111 Mr Rynja spoke to Mr De Angelis about the proposal at about the same time. Mr De Angelis told Mr Rynja that he was concerned that the change should not result in reduced service on the Santos CMS Contract but that if Mr Hall confirmed that the service could continue to be delivered effectively, then he would support the change. 112 Mr Rynja then spoke to Mr Hall and reported to Mr De Angelis on 4 July 2013 by email: I have spoken with Lou and we've agreed the best outcome would be actioning the following: 1. The white collar recruitment function currently held by Anthony Tsilibakis is made redundant. 2. All white collar vacancies for Santos moving forward will be recruited regionally by the National Recruitment Team. 3. The blue collar recruitment role will remain 4. Maureen Ginting who holds the blue collar recruitment role will transfer into the National Recruitment Team and report directly to me. Maureen will still be paid for 100% by the contract. If you are comfortable with these changes I will coordinate with Sarah Bendy and Lou Hall to action. 113 Mr De Angelis said that he agreed with the proposal in Mr Rynja's email of 4 July 2013 because he knew that less white collar recruitment was necessary on contracts such as the Santos CMS Contract after the first six months, whereas there was a greater need for ongoing recruitment of blue collar employees. Transfield had commenced the Santos CMS Contract in November 2011, so it had reached the stage of relative stability to which Mr De Angelis referred. 114 Mr De Angelis gave his approval to Mr Rynja by an email on 5 July 2013. At the same time, Mr De Angelis gave verbal approval to Mr Hall to proceed to make the applicant's position redundant. At that time the proposed date of termination was 2 August 2013. Mr De Angelis confirmed his decision on 8 August, being the day before the applicant's employment was in fact terminated. 115 In his evidence, Mr De Angelis denied that he had made the decision that the applicant's position was redundant because of the applicant's complaints. He said that he had not even known about the complaints at the time and that his decision was based solely on the savings which could be made by moving the Santos recruitment function into the National Recruitment Team. Furthermore, the applicant was not the only person affected by the transfer of the recruitment function into the National Recruitment Team. 116 In the cross-examination, counsel for the applicant put to Mr De Angelis an email from Mr Hall on 1 May 2013 by which he had provided Mr Vigus with a copy of a complaint the applicant had made against a Ms Payne. This was another complaint altogether and did not form part of the applicant's pleaded First, Second or Third Complaints. The email showed on its face that it had been copied to Mr Bird and Mr De Angelis but Mr De Angelis said that he did not recall seeing it. It was not suggested to Mr De Angelis that he had taken account of this particular complaint in the decision concerning the applicant's redundancy. 117 In fact, apart from one matter, Mr De Angelis was not really challenged on his evidence. The single challenge concerned the statement the applicant said Mr De Angelis had made at a "toolbox" meeting in early July 2013. The applicant said that Mr De Angelis had told employees present at that meeting that there would be no further redundancies on the Santos CMS Contract and that any further redundancies "would happen at the corporate level and outside of the contract level". Mr De Angelis denied making such a statement. 118 Having regard to my favourable impression of Mr De Angelis as a witness, I accept that denial. I also consider it improbable that Mr De Angelis would have made such a statement given the discussions already on foot to which Mr De Angelis was a party concerning the transfer of the recruitment function to the National Recruitment Team and the retrenchment of the applicant and others. 119 It is convenient also to state my conclusion with respect to Mr Kerswell at this point. Mr Kerswell was aware, at a high level, that the applicant had made some complaints, but was not aware of their detail. He deposed that his recommendation to Mr De Angelis was based solely on the desire to achieve cost savings and had not been influenced by the applicant's complaints. I accept that evidence. It was not seriously challenged. 120 Accordingly, the applicant's claim, insofar as it rests on the reasons of Mr De Angelis and Mr Kerswell for the termination, fails.

The reasons of the other contributors 121 My conclusion that the applicant's exercise of his workplace rights played no part in the decision of Mr De Angelis and the recommendation of Mr Kerswell is not conclusive of the applicant's case with respect to the termination of his employment. Regard should also be had to the basis for the underlying recommendation on which they acted. If those making the recommendation to Mr De Angelis did so because of the making of the applicant's First Complaint, Transfield would not discharge the s 361 onus. This is evidenced by the authorities. 122 In Voigtsberger v Council of the Shire of Pine Rivers (No 2) (1981) 58 FLR 239, the finance committee of the respondent Council had recommended that the applicant's position be abolished. The report of the finance committee was adopted later that same day by the full Council. Evatt J held at 256 that the decision of the finance committee was the critical decision in the case because the full Council had merely rubber stamped its recommendation. Accordingly, it was essential that the Court have evidence from the members of the finance committee so that it could determine whether a proscribed reason had been a substantial and operative factor influencing the decision of any individual councillor. 123 Smithers J addressed the question of principle involved in Wood (on behalf of the Industrial Relations Bureau) v Lord Mayor, Councillors and Citizens of the City of Melbourne (1979) 41 FLR 1 at 19 in a context analogous to the present: In the task of ascertaining the mind of the defendant corporation, with respect to the standing down of Mr Kane, that mind may be located in the mind of one authorised officer or of more than one person exercising the executive power of the corporation. It is a pure question of fact where in particular circumstances that corporate mind may be located. In a case where two officers are concerned in the solution of an administrative problem and are working jointly to solve it and decide what the corporation is to do and are working in harmony and in full confidence, the one with the other, the mind of the corporation is to be found in the course of conduct agreed upon between them and the reasons which in the end are the operating reasons for the policy agreed upon. However, as Smithers J went on to acknowledge, that does not preclude the possibility that one of the participants may have as his or her motive an undisclosed proscribed reason for joining in the decision. 124 Gray J also noted the issue in Gibbs v Palmerston Town Council (unreported, 21 December 1987) at 84-5 when he said: [T]here is still a difficult question of the extent to which the improper purpose of one person may be a substantial operative factor in the decision of another. Clearly, if the actual decision maker simply "rubber stamps" a decision in fact made by another, the purpose of that other will be a substantial operative factor. At the other extreme, if the actual decision maker truly believes the false and innocent reasons advised by the other person, the mind of the decision maker will not be tainted by the improper purpose of the other person. The problem assumes greater complexity when the decision is made by more than one person, as might be the case with the board of directors of a company, and as is often the case when the decision is made by a local government authority. 125 Gray J reviewed and applied these authorities in National Tertiary Education Union v Royal Melbourne Institute of Technology [2013] FCA 451 at [25]-[29]. 126 Counsel for the applicant referred to Rowland v Alfred Health [2014] FCA 2. The decision in that case confirms that it is appropriate to have regard to the reasons actuating the members of a selection committee making a recommendation, and not just to the reasons of the ultimate decision maker. 127 Accordingly, it is appropriate in the present case to have close regard to the reasons of those who made the recommendations to Mr De Angelis and Mr Kerswell. This includes their reasons for recommending the restructure which Transfield adopted as well as their reasons for selecting the applicant as a person to be made redundant in consequence of that restructure. The evidence of Mr Rynja and Mr Hall is particularly significant in this respect. Mr Handy did not contribute to the recommendation to Mr De Angelis, and Mr Vigus had only a limited role. 128 I have already referred to the initiative of Mr Rynja in early June 2013 which led to the restructure and the termination of the applicant's employment. At that time, Mr Rynja knew of the applicant's First Complaint but not its outcome. Mr Rynja did say that he received an "update" by telephone from Mr Vigus about three weeks after speaking to Mr Vigus on 30 April. Any update at that time would have been relatively uninformative as the active part of Mr Vigus' investigation occurred at the end of June 2013. I think it likely, however, and so find, that Mr Rynja would have been informed, at least in a general way, by Mr Vigus of the progress of the investigation. That is especially so given that Mr Vigus had concluded in the last week of June 2013 that one of the applicant's complaints should be upheld. 129 Mr Rynja also said that he had not discussed the applicant's complaints with Mr Hall after 30 April 2013. I am willing to accept that that was so, but again consider it probable that after the initial recommendation that the applicant be made redundant, Mr Hall provided Mr Rynja with information of a general kind concerning the progress of the complaint. 130 I set out earlier the terms of Mr Rynja's email to Mr De Angelis on 4 July 2013. Mr Rynja also sent an email that same day to Mr Hall. He repeated in the first part of the email the actions which he had outlined in the email to Mr De Angelis and then continued: It should be noted I have several senior white collar recruiters in my team who have technical experience recruiting within the oil and gas industry. Marina and Alex in Brisbane are currently recruiting similar roles to that of which you require for Santos for our CSG contracts and Ang Jenkins in the West has significant large project and maintenance experience within oil and gas recruitment. Sam Blee who is our shutdown trades recruitment lead can also support blue collar recruitment as required. I would ask you budget some annual costs for travel to site and accommodation for my team for you are looking at recruiting volume white or blue collar vacancies. As can be seen, by this time Mr Rynja was contemplating that there would not be any need for the applicant or his subordinates to be transferred to the National Recruitment Team. 131 After Mr De Angelis gave his approval on 5 July 2013, further action towards the restructure occurred. 132 Mr Rynja, Mr Hall, Mr Vigus and Mr Handy participated in a teleconference on 5 July 2013. In that teleconference, Mr Handy was informed for the first time that Transfield was considering moving the recruitment function on the Santos CMS Contract to the National Recruitment Team. He was also told that if that plan proceeded, the recruitment roles on the Santos CMS Contract would be redundant. As the request of the participants, Mr Handy later prepared and circulated a document entitled "HR Structure Proposal" setting out the roles and responsibilities of the existing recruitment team and identifying who would perform those duties under the new structure. 133 It is evident that by 5 July 2013, those involved in the restructure proposal were conscious of the timing of its implementation in relation to the finalising of the investigation by Mr Vigus of the applicant's complaint. They were also conscious of the implications of making the applicant as a permanent employee redundant but continuing the employment of Ms McBride, a contract worker. Mr Vigus referred to these matters in an email he sent to Ms Bendy in Human Resource on 5 July which included: GV to close out the bullying and harassment complaints by Anthony Tsilibakis. A further discussion point is that Maureen is engaged through an Agency at the moment as is Brenna McBride in the Santos recruitment team. To make Anthony redundant and employ an Agency person is likely to draw attention from Anthony - so this needs to be considered before we go anywhere with a redundancy. I believe the service can be delivered by the National Recruitment Group but who stays and who goes needs closer attention to get the best outcome. In addition we should consider where any budget comes from and if any savings can be derived from the exercise for the Santos contract. 134 Another teleconference between Mr Rynja, Mr Hall, Mr Vigus and Mr Handy occurred on 9 July 2013. The participants discussed Mr Handy's HR Structure Proposal and determined that the recruitment function for the Santos CMS Contract could be performed appropriately by the National Recruitment Team. 135 Mr Rynja deposed that, during the course of this meeting, he realised that the number of recruitments on which the applicant was working was well less than the applicant's stated 20 roles. He said he obtained that information from the Recruitment Update Reports provided by Ms Ginting twice a week. Neither party tendered copies of these reports. Mr Rynja did not depose to the significance of this discovery but, by inference, it seems to have confirmed his view that retrenchment of the applicant was appropriate. 136 During the balance of July, the proposal for the restructure was settled. Initially, it was contemplated that the applicant's employment would be terminated on 2 August 2013, but this was delayed by a week in order to allow the complaint process to be finalised. 137 Although the restructure proposal emerged at the same time as the investigation of the applicant's complaint, there is no indication in the contemporaneous documents to indicate that the two were causally related. Furthermore, as already indicated, reductions by Transfield of its workforce resulting in redundancies were not unusual. I have already referred to the applicant's evidence that he was apprehensive in early 2013 that he may be made redundant. 138 Several of Transfield's witnesses deposed to Transfield's ongoing review of its structures and the efficiency of its operations. I have referred to some of the evidence on this topic already. Several witnesses observed that it was common for there to be a greater need for recruitment services during the "ramp up" or commencement phase in a new contract, because a higher volume of new employees must be recruited within a short timeframe. Recruitment activity reduces significantly once the "ramp up" is complete. This circumstance pertained in relation to the Santos CMS Contract. Mr Rynja deposed to initiatives entitled "Project Quantum" and "Project Orange" which Transfield had undertaken in 2012 which resulted in changes in its recruiting system. He said that these had reduced the administrative requirements of recruiters. 139 Mr Rynja also deposed that in mid-2013, Transfield was "focusing sharply on restructuring its operations in order to minimise costs" and that because of "diminished workload for recruiters across the business ... we were struggling to keep recruiters at capacity". Other witnesses deposed to the same matters. Mr Vigus deposed that in the financial year ending 2013, Transfield made approximately 350 employees redundant and that other recruiters had also been made redundant. 140 For the Court to accept applicant's claim that the restructure and the consequent redundancies on the Santos CMS Contract was simply a contrivance to get rid of him, the Court would have to find that there was, in effect, a form of conspiracy between, at the least, Mr Rynja and Mr Hall. At one stage the applicant's counsel asserted that that was his claim. That is a serious allegation. It had not been pleaded and it is not, in any event, supported by the evidence. 141 I am satisfied that the restructure was unrelated to the applicant's complaints. I reject the submission that it was simply a device or contrivance so that Transfield could terminate the applicant's employment. In particular, it was not a device or contrivance by which Transfield could terminate the applicant's employment because he had made the First Complaint. It was instead a restructuring for the reasons to which the Transfield witnesses deposed, namely, the obtaining of savings and efficiencies. 142 Mr Hall may have well appreciated that termination of the applicant's employment in consequence of the restructure would remove an employee whom he considered to be an irritant, but that appreciation does not indicate that the applicant's First Complaint was an operative factor in Mr Hall joining in the recommendation for the restructure and the redundancy of the applicant. 143 Mr Rynja and the applicant were on friendly terms, as they regularly had lunch together on Mr Rynja's trips to Adelaide. It is highly improbable that Mr Rynja would have been motivated to contrive a redundancy just to get rid of the applicant.

The selection of the applicant for redundancy 144 Although not expressly pleaded, some of the applicant's submissions, and some of the evidence he adduced in cross-examination, were to the effect that, even if there was a genuine restructure, someone else should have been selected for retrenchment. The applicant suggested, for example, that he should have been transferred to the National Recruitment Team and that a member or members of that team made redundant. He also submitted that instead of the contract workers being kept on to the end of August, he should have been the one kept on so as to enhance his prospects of redeployment if a position became available later. 145 Transfield adduced relatively little evidence on this topic. This may well be because the issue had not been pleaded. 146 The evidence suggests that the identification of the applicant as a person to be made redundant was part and parcel of the restructure proposal. However, Mr Vigus recognised that it may be an issue for the applicant if his employment was terminated but the contract workers kept on. He referred expressly to this in his email of 5 July 2013. It is not altogether clear whether Mr Rynja and Mr Hall were aware of this concern of Mr Vigus as the email in which he mentioned it was not copied to them. It seems that they may well have taken the view that as the applicant was performing the recruitment of white collar employees for whom there was relatively little need, he rather than the contract workers should be the one retrenched. Other evidence indicated that the savings from the retrenchment of the applicant would be greater (he was on a higher salary) if he was the one retrenched, and it was contemplated that the employment of the contract workers would conclude at the end of August 2013 in any event. 147 As the selection of the applicant for redundancy was not part of his pleaded case, it would not be appropriate to find that Transfield had failed to discharge the s 361 onus on this basis.

Locating an alternative position 148 The applicant contended that Transfield had taken adverse action of a relevant kind by failing to take adequate steps to locate alternative employment for him. He contended that this omission had injured him in his employment and/or altered his position to his prejudice. The applicant alleged in this respect that Transfield had failed to comply with its own Redundancy and Resignation Procedure (Redundancy Procedure) and its own Human Resources Management Plan (the HRM Plan). Clause 6.3 of the Redundancy Procedure provides: Following approval to effect redundancy measures, a review of suitable alternative employment opportunities for affected employees must be undertaken by management, including Company or Joint Venture redeployment or transfers. Where no suitable alternative employment is identified, the employee may have [an] entitlement to Redundancy/Severance Pay. (Emphasis added) 149 The applicant attached to his affidavit a number of advertisements by Transfield in the latter part of 2013 for positions which he said he had the capacity to fill. This evidenced, he submitted, Transfield's failure to consider him for alternative positions. 150 The evidence indicates that Mr Rynja was the relevant decision maker with respect to consideration of alternative positions. 151 Mr Rynja described the usual process by which Transfield reviews suitable alternative employment opportunities. Generally, a recruiter will send an email to the rest of the National Recruitment Team identifying the candidate by their current area or project and outlining their skills, qualifications and experience. The other recruiters then consider whether that person is suitable for roles which they have available. 152 Mr Rynja said however, that this procedure is not followed when the role being made redundant is a recruitment role. That is to preserve confidentiality. The circulation of an email of the usual type would alert recruiters that one of their number is likely to be made redundant with the effect that the affected employee would probably then become aware of his or her fate indirectly. Mr Rynja said that, accordingly, the search for alternative employment opportunities is carried out by one person at a senior level. In the applicant's case he was that person. The applicant's submission was that this evidence was a fabrication by Mr Rynja, to cover the fact that the usual procedure had not been followed in his case. 153 Mr Rynja said that he engaged in the following process: (a) He reviewed the National Recruitment Report of open roles with a view to identifying any suitable opportunities; (b) He discussed with a National Recruitment Manager the possibility of transferring the applicant into the National Recruitment Team; (c) He considered whether it may be possible to transfer the applicant to Queensland to work on the QGC CSP Contract; (d) He spoke to an ex-colleague working with Conocco Phillips and enquired whether opportunities were available in their recruitment team. 154 Mr Rynja deposed that this was the same process which he had applied in the case of two recruiters in Western Australia who had been made redundant in July 2013. 155 I accept Mr Rynja's evidence about these matters. I note again his friendly relationship with the applicant. It is improbable that Mr Rynja would have been seeking to harm the applicant and much more probable that he would have been concerned to do what he could in the circumstances. 156 I also accept Mr Rynja's evidence about the advertised positions to which the applicant referred. Mr Rynja said that none of those roles had been available prior to the applicant's termination on 9 August 2013 and had not even been "in the pipeline" at that time. 157 Accordingly, I am satisfied that Transfield has discharged the s 361 onus in respect of this form of alleged adverse action.

Termination with immediate effect 158 The applicant pleaded that Transfield had taken adverse action against him of a relevant kind by terminating his employment with immediate effect rather than placing him on "gardening leave" until an alternative position could be located. More particularly, the applicant submitted that he should have been allowed to work out his period of notice. 159 Mr Hall and Mr Handy were the decision-makers on this aspect of the matter. 160 The applicant's claim that the failure to allow him to work out the period of notice, or to take "gardening leave" (by which I understood him to mean that he would continue as an employee but not be required to attend at work) was a basis for his assertion that he had been treated differently from others. He referred to another employee of the respondent, a Mr Stiplovsek, who had been placed on "gardening leave" until such time as another role had been located for him. He also referred to the two contract employees in his team. He said that these two contractors had been allowed, after having been given their notice, to work until the end of August. As part of his evidence on these matters, the applicant said that he had been "denied a farewell lunch and/or presentation, or opportunity to farewell work colleagues". He attributed this claimed differential treatment to his having made the three complaints. 161 Mr Handy gave evidence of his discussions with Mr Vigus and of their decision that the applicant be terminated with immediate effect. He said that they had been concerned that any negative reaction from the applicant to his redundancy would impact on persons being recruited and on the transfer of the recruitment work to the National Recruitment Team. Mr Vigus did not give evidence of this conversation or of considering the issue in the case of the applicant. He said, however, that sometimes employees were asked to work out notice periods and sometimes not, but that employees were often paid in lieu if they were considered a risk to the business by continuing. 162 Mr Handy also deposed that gardening leave is not an option offered to employees whose roles are made redundant. He was aware of only one employee who had been placed on gardening leave, namely, Mr Stiplovsek. That had been allowed because Mr Stiplovsek had particular skills and experience which Transfield knew they would require for a future position and wished to retain him for that position rather than running the risk that he would cease to be available. Mr Handy said that this was the exception rather than the norm. 163 However, on Monday, 29 July 2013, Mr Handy had sent an email to Mr Hall regarding the manner in which the termination of the applicant's employment would be effected. At that time it was contemplated that the termination would take place on the Friday of that week, namely, 2 August 2013. In the email Mr Handy said: ... I would recommend we make the decision to have him not work his notice period. At the meeting Friday we can communicate that we will use his notice period to complete further investigations regarding deployment within the greater TS organisation however we will not have him work during that period. 164 As can be seen, it is implicit in this email that Mr Handy contemplated that that the applicant be given notice but not be required to attend work during the notice period. On one view, this could be regarded as inconsistent with Mr Handy's evidence about the general practice. 165 However, other Transfield witnesses confirmed that keeping employees on to the end of the notice period, but not requiring them to attend at work, was not part Transfield's general practice. 166 On my assessment, Transfield's practice with respect to "gardening" leave may have been more liberal than the evidence of Mr Handy suggested. However, the grant of gardening leave was still the exception rather than the rule. Mr Kerswell said, and I accept, that employees were rarely put on gardening leave. He also said that around 85% of the employees whose employment was terminated for redundancy during 2012 and 2013 were given pay in lieu of notice, rather than being terminated at the end of the period of notice. 167 As already indicated, I considered that Mr Handy gave his evidence quite fairly, commonly making concessions against interest. I accept his evidence about the circumstances in which Mr Stiplovsek was placed on "gardening" leave. The position of the two contract workers was obviously different from that of the applicant. I consider it pertinent that the applicant did not point to other examples of persons being placed on "gardening" leave. 168 Mr Hall says that he was the one who decided that the applicant should be given payment in lieu of notice. In his affidavit, he said that was for two reasons: first, he thought it likely that the applicant would feel aggrieved at being terminated and may in that circumstance misuse confidential information to which he had access, and, secondly, because there was not a lot of work to be transferred from the applicant to the National Recruitment Team. 169 In his oral evidence, Mr Hall also said that the applicant had been terminated with immediate effect because there were no options for redeployment known at the time. He had relied on information from Mr Rynja in that respect. 170 I accept the evidence of Mr Hall about these matters. His assessment of the applicant's likely reaction has been borne out by subsequent events. 171 It may well be the case that Transfield decided that it would prefer to terminate its relationship with the applicant immediately rather than have him on some form of "gardening" leave. Furthermore, it may well be the case on the evidence that Mr Hall in particular had come to regard the applicant as an unpleasant employee, especially given the applicant's complaint for spiteful reasons against him. However, I accept the evidence of Mr Hall and Mr Handy that the decision to terminate his employment with immediate effect was not based at all on the fact that the applicant had exercised his right to make complaints.

Non-compliance with redundancy procedures 172 The applicant's last claim with respect of the termination of his employment was that Transfield had not complied with its own redundancy procedures and that this was because he had made complaints. I will address the redundancy procedures in more detail shortly. 173 This aspect of the adverse actions case was hardly pressed. I am satisfied in any event that Transfield has discharged its onus under s 361 with respect to the redundancy policies.

The EP Coordinator position 174 The applicant claimed that Transfield had taken adverse action against him after the termination of his employment by refusing to employ him in an EP Coordinator's position, or even to respond to his offer in respect of that position. 175 The applicant relied on the evidence concerning the EP Coordinator's position in two ways. First, he contended that Transfield's refusal to appoint him to the position undermined its claim that it had genuinely considered whether there were suitable alternative positions for him and therefore reinforced his claim in respect of the First Complaint. Secondly, he submitted that it amounted to a freestanding contravention of s 340(1) of the FW Act. 176 The background to this claim is as follows. The applicant filed an application under s 365 of the FW Act in the Fair Work Commission on 19 August 2013. This was an exercise of a workplace right: FW Act s 341(1)(b) and (c). The FWC conducted a conference to deal with the dispute on 4 September 2013. It was not able to obtain a resolution by agreement. Accordingly, the FWC issued a certificate pursuant to s 369 of the Act that same day certifying that all reasonable attempts to resolve the dispute had been, or were likely to be, unsuccessful. 177 The applicant commenced the current proceedings on 17 September 2013. 178 On 12 September 2013, the applicant's solicitors, Norman Waterhouse Lawyers (NWL) sent a letter to Mr Parkinson, Transfield's Group General Manager: Labour Relations Strategy and Development. In the letter, NWL said: Our client has proposed an alternative position which is available within your organisation and seeks to again enquire regarding that position. The position specifically is the EP Coordinator role which is one currently available at Moomba. Our client has the skills for this position, and a background in understanding excavation work, along with exceptional organisational skills. Our client seeks to be appointed to this position at its banded remuneration level. The letter went on to make representations about the applicant's suitability for the job and ability to undertake on the job training and concluded with the assertion that, should the applicant's request be refused, it would be taken as further evidence that his employment had been terminated because of the complaints which he had made, rather than because there were no suitable alternative positions available. Mr Parkinson responded on the morning of 13 September 2013, telling NWL that he was then in North America but that a member of his team would respond in due course. 179 It was common ground that Transfield did not otherwise respond to NWL's letter. 180 Transfield submitted that the applicant had not established that there was a vacant EP Coordinator's position in September 2013 to which the applicant could have been appointed and contended that s 342(1) Item 1(a) was engaged only if a position or vacancy existed at the time of the refusal: Fraser v Fletcher Construction Australia Ltd (1996) 70 IR 117 at 121; Maritime Union of Australia v Burnie Port Corporation Pty Ltd [2000] FCA 1189, (2000) 101 IR 435 at [43]-[44]. 181 It is true that the evidence does not establish expressly that there was a vacant EP Coordinator's position, but I do not regard this as decisive. The NWL letter of 12 September 2013 asserted that an EP Coordinator's role was "currently available" at Moomba. Transfield did not deny that assertion and dealt with the NWL letter at the time, and in the hearing, on the basis that there was a vacancy. It is natural to expect that Transfield would have denied that there was any vacancy, if that was the case. Accordingly, I consider it appropriate to proceed on the same basis as did Transfield in September 2013 and during the course of the evidence, namely, on the basis that there was a position to which the applicant could have been appointed if he had the requisite qualifications and experience. 182 It seems that there may have been some discussion about the EP Coordinator's position at, or in connection with, the conference in the FWC on 4 September, as Mr Handy had been asked to, and did, provide the relevant position description to Mr Vigus that day. 183 The applicant's first submission was that Transfield had not discharged the s 361 onus because it had not adduced evidence from Mr Parkinson as to the reasons for not offering him the EP Coordinator's position. This submission assumed that Mr Parkinson was in fact the relevant decision-maker. 184 The applicant made that assumption because it had been Mr Parkinson who, on 26 August 2013, had provided Transfield's formal response to the application in the FWC. Further, Transfield's discovered documents indicated that, on 12 September 2013, Mr Hall had provided Mr Vigus with comments on NWL's letter to which Mr Parkinson had responded, saying "Thanks Lou - very convincing, cheers Peter". Accordingly, there was only a slender foundation for the applicant's assumption. 185 When it was pointed out to the applicant's counsel that the material was just as consistent with Mr Parkinson having acted in a representative, rather than decision-making, role, counsel modified the submission to one that, in order for Transfield to discharge the s 361 onus, it should identify the relevant decision-maker and lead probative evidence from that person. I accept that that is so in the present case, although whether it be so in all cases need not be determined. 186 However, the applicant's submission that Transfield had not in fact identified the decision-maker and had not discharged the onus under s 361 cannot be accepted. Although Mr Vigus did not say so expressly, his affidavit indicates sufficiently that he was the relevant decision-maker. Mr Vigus denied that he had taken into account the applicant's complaints and the applicant's application in the FWC when deciding not to respond to the NWL letter or to offer the applicant the role of EP Coordinator. Mr Vigus said that he had made enquiries as to the applicant's suitability for the role of EP Coordinator and had formed the view, based on the information available to him, that the applicant was not appropriate for the role. 187 The documentary evidence supports Mr Vigus' account. He was provided with a copy of the NWL letter at 9.06am on 12 September. At 9.33am, he provided a copy to Mr Hall by email. Mr Hall provided a written response to Mr Vigus at 7.31pm that same day. In that response Mr Hall said: The EP Coordinator position is a highly specialised role which requires specific knowledge of the flowline business and the Santos Cooper Basin operation. I have attached the PD which clearly specifies the requirements. The current employees who hold these positions are [four named persons]. I have attached three of the CV's which demonstrate the experience required. I cannot find a copy of Robert's but assure that you that he is on the same level. I will forward when I locate it. 188 Mr Vigus also deposed to discussing the applicant's suitability for the EP Coordinator position with Mr Hall on 13 September. Mr Hall confirmed then his view that the applicant did not have "the skill set or experience" to perform the EP Coordinator's role. 189 On the basis of the position description and Mr Hall's statements, Mr Vigus concluded that the applicant was not suitable for the role of EP Coordinator. 190 Transfield had not responded to NWL by the time that they were served on 18 September 2013 with the proceedings commenced in this Court. Mr Vigus said that as proceedings had been commenced no further response was provided to NWL. 191 As already indicated, I regarded Mr Vigus as a reliable witness. His account of his involvement in the decision in respect of the applicant's request to be considered for the EP Coordinator's position was not, with one presently immaterial exception, challenged. I accept that account. 192 I add that Mr Hall also said that he had not taken into account the applicant's complaints or his application to the FWC, when informing Mr Vigus about the applicant's suitability for the EP Coordinator's position. I accept that evidence, although I also accept the applicant's criticism of Mr Hall's summary of the experience of one of the existing EP Coordinators. 193 The applicant challenged Mr Hall's assessment that he did not have the training or experience to be an EP Coordinator. He acknowledged however, that each of the current EP Coordinators had operational experience and that he did not have any. 194 Accordingly, I am satisfied that Transfield has satisfied the s 361 onus with respect to the applicant's claim based on the EP Coordinator's position. The applicant's reliance on Transfield's response (or absence of response) to this request does not succeed, whether as a free standing claim of adverse action, or as part of his claim in respect of the termination of his employment on 9 August 2013. 195 Had it been necessary to do so, I would have rejected Transfield's submission that the NWL letter of 12 September 2013 should not be regarded as an application for employment.

The breach of contract claim 196 Like the applicant's adverse action claim, his claim that Transfield had breached his employment contract was modified and confined significantly during the course of the opening of his case. The claim ultimately pursued was that the applicant's contract of employment included a term that Transfield would comply with its Redundancy Procedure and the HRM Plan in the Santos CMS Contract No. 936864. The applicant claimed that Transfield had breached the employment contract by: (a) failing to undertake a review of suitable alternative employment opportunities, including company or joint venture redeployment or transfer; (b) failing to consider potential relocation of the applicant to other Transfield sites; (c) failing to apply selection criteria based on an assessment of classification, skills, competence, behaviour and experience. 197 The applicant alleges he suffered loss by reason of these breaches, although neither his particulars nor his submissions identified any discrete loss said to result from these particular breaches. 198 Transfield denied that it was a term of the contract of employment that it would comply with the Redundancy Procedure or the HRM Plan and, in the alternative, denied that it was in breach of any requirements in those documents. 199 The applicant indicated that the breach of contract claim was made in the alternative to the adverse action claim, with the effect that it would be necessary for the Court to consider it only in the event that the adverse action claim failed. 200 The applicant's claims with respect to the terms of his contract of employment were not well pleaded. The pleading was that the terms and conditions were partly in writing and partly implied. For the allegation that they were in writing, the applicant relied upon his acceptance of the terms of Transfield's offer contained in a letter dated 5 April 2012. I will refer again to that shortly. For the allegation that the terms and conditions were implied, the applicant asserted simply that the requirement that Transfield comply with the Redundancy Procedure and the HRM Plan was a matter implied by fact. This plea was not supported by any particulars. Nor was it elaborated upon in the applicant's opening or closing submissions. 201 In the opening, counsel for the applicant did indicate that the claim for breach of contract was confined to a claim that Transfield had breached cl 6.3 of the Redundancy Policy by not conducting a review of potential suitable alternative positions; had breached cl 7.4 of the HRM Plan by not keeping the applicant on during his notice period so as to give him the opportunity to be considered for alternative positions which might become available during that period; and had breached cl 7.4 by contriving a circumstance of redundancy in order to terminate the applicant's employment. 202 The letter of offer of employment from Transfield dated 5 April 2012 adopted in the main the style of a heading at the left hand side of the page and a description relating to that heading on the right hand side. In relation to compliance with the Transfield policies and procedures, the letter provided: Company Policies and Procedures You are required to comply with all Company Policies and Procedures. The Company's Policies and Procedures include, but are not limited to, health and safety, environment and human resources policies and procedures, and any other policies and procedures the Company may implement and/or modify from time to time. You will be required to acknowledge your understanding and agreement to abide by these policies at the time of induction. Transfield Services reserves the right to review and revise these policies and procedures from time to time. Code of Business Conduct & House Rules Copies of Transfield Services' Code of Business Conduct and House Rules accompany this offer and upon your acceptance of this offer form part of your contract of employment. By signing this offer, you acknowledge that you have received and read these documents and agree to abide by their contents. Equality and Diversity in the Workplace A copy of the Equality and Diversity in the Workplace Policy accompanies this offer and upon your acceptance of this offer forms a part of your contract of employment. By signing this offer, you acknowledge that you have received this policy and agree to abide by its contents. ... Health, Safety and Environment Transfield Services has established health, safety and environment Policies and standards that are designed to provide all employees and visitors to our workplaces with a safe and healthy working environment, consistent with our obligations at law. Our Mandatory Safety Rules set out the behaviours required of our employees and contractors when working in proximity to specific hazards. ... You will therefore be required to abide by all site rules and safety standards, and any revisions or additions that may be made from time to time whilst in our employment.

203 The letter of employment required the applicant to sign it and the attachments as confirmation of his acceptance of its terms. The tendered copy of the contract of employment was not countersigned by the applicant, but it was not suggested that anything turned on that. 204 In relation to the claimed incorporation of the Redundancy Policy and HRM Plan into the applicant's contract of employment, both parties referred to Riverwood International Australia Pty Ltd v McCormick [2000] FCA 889; (2000) 177 ALR 193 and to Goldman Sachs JBWere Services Pty Ltd v Nikolich [2007] FCAFC 120; (2007) 163 FCR 62. The question of whether these documents were incorporated into the applicant's contract of employment is to be determined objectively. If a reasonable person in the position of the applicant would have concluded that Transfield intended to be bound contractually by the Redundancy Policy and the HRM Plan, then Transfield will be regarded as having been so bound: Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52, (2004) 219 CLR 165 at [40]; Nikolich at [23]. 205 In the present case, it is not necessary in my opinion to give detailed consideration to whether the Redundancy Procedure did form part of the applicant's contract of employment as I consider that the claim must fail in any event. 206 I indicate, however, that I consider that the applicant's contention that the terms of the Redundancy Procedure did form part of his contract of employment to be correct. The document is described as a "procedure" and states its purpose as follows: To ensure that in circumstances where the employment relationship ends, that the parties to the employment contract discharge their lawful obligations in accordance with the termination/redundancy or resignation provisions as prescribed by the employee's contract of employment, industrial instrument and/or statutory legislation. This procedure also seeks to ensure that upon termination of employment, all employees are treated in a procedurally fair and reasonable manner. Note: Individual Common Law Contracts, Industrial/Occupational Awards, Enterprise Agreements and other relevant legislation may have authority over the provisions set out in the procedure - check with Human Resources. 207 A number of the provisions in the policy are expressed in mandatory terms. Further, the procedure elaborates the way by which Transfield, or employees, as the case may be, should effect terminations of employment. 208 Clause 6.3 of the Redundancy Policy provides (relevantly): Redundancy occurs where the Company has determined that a role is no longer required to be performed by any employee. Such circumstances may necessitate that the employment of the employee will be retrenched as a consequence of the redundancy. Where redundancy is being considered, it is necessary that the Manager discuss the proposal with HR before gaining approval from the Authorised Manager as per the Authorities Matrix. Following approval to effect redundancy measures, a review of suitable alternative employment opportunities for affected employees must be undertaken by management, including Company or Joint Venture redeployment or transfers. Where no suitable alternative employment is identified, the employee may have [an] entitlement to Redundancy/Severance Pay. (Emphasis added) 209 The balance of cl 6.3 concerned the entitlement of employees whose employment is governed by industrial awards, and notice requirements to Centrelink and to unions. 210 The manner of expression of the document suggests that it is obligatory in nature, rather than aspirational. Furthermore, the document answers the description of "human resources policies and procedures" to which the applicant's letter of employment referred. However, as I have said, it is not necessary to consider these matters further. 211 The applicant alleged non-compliance by Transfield with the requirement that it undertake "a review of suitable alternative employment opportunities". For the reasons given earlier, this contention of the applicant is not made out as a matter of fact. Mr Rynja did conduct such a review. I accept his evidence about that. I note again that Mr Rynja was favourably disposed towards the applicant and had a good working relationship with him. In some respects he was a confidant of the applicant. There is no reason to suppose that Mr Rynja carried out his review in a narrow or perfunctory manner. 212 Accordingly, even if the Redundancy Procedure did form part of the applicant's contract of employment, his claim of breach of contract arising from alleged non-compliance with the requirements of cl 6.3 fails. 213 The HRM Plan stands differently. 214 There is first a question of identifying the HRM Plan which was in force at relevant times. 215 The applicant annexed to his affidavit two different HRM Plans: Annexure AT-2 and Annexure AT-33. In the body of his affidavit, the applicant described AT-2 as a true copy of "the Santos contract" which he had earlier had defined as the "Santos CMS Contract 936864". He described AT-33 in his affidavit as one of "a number of policies and procedures which governed the employment relationship". However, in his oral evidence in chief, the applicant said that Annexure AT-2 was the "correct version" of the HRM Plan and that AT-33 could be ignored. He sought to explain his annexure of two HRM Plans to his affidavit by saying, initially, that he had presumed that they were the same. Later, however, the applicant said that there had been confusion of his part because the two plans are not the same. 216 Transfield contended that Annexure AT-33 was the operative HRM Plan. Mr Vigus deposed that AT-2 had been prepared only as part of a re-bid process. He said that Annexure AT-33 was the document recorded in Transfield's document quality control system as the relevant HRM Plan. 217 This disagreement as to the particular HRM Plan which was in force at relevant times should have been capable of ready resolution by agreement between the parties. I encouraged them to do so. However, counsel later informed me that they had been unable to reach that agreement. 218 Hence, it is necessary to make a finding as to which HRM Plan was in force. The position is quite unsatisfactory as the evidence upon which the Court is asked to make the finding is incomplete. The applicant's claim that Annexure AT-2 is a true copy of Transfield's contract with Santos is plainly incorrect. Annexure AT-2 is what its title suggests, namely, a Human Resources Management Plan. It does not even purport to be a contract and, by its terms, indicates that it is an HRM Plan in relation to a contract, rather than a contract itself. In its Introduction, Annexure AT-2 says that it sets out "the strategies and framework for the management of Human Resources (HR) matters for the Construction and Maintenance Services (CMS) Contract". It goes onto say that it "connects the CMS principles, values and Transfield Services business and operational requirements to the way people are managed". Accordingly, Annexure AT-2 may form part of Transfield's contract with Santos but it is not the contract itself. The same points may be made with respect to Annexure AT-33. 219 The parties did not tender a copy of the Transfield-Santos contract, or even a redacted version of it. 220 Although I accept Mr Vigus' evidence that the Transfield document quality control system may record that Annexure AT-33 is the relevant HRM Plan, I am not prepared to find that that is in fact the case. It indicates that it was issued in September 2011, whereas Annexure AT-2 indicates that it was issued on 25 October 2011. This makes it difficult to regard Annexure AT-33 as a document issued subsequently to Annexure AT-2 as part of a re-bid process. Furthermore, Annexure AT-33 indicates, on its face, that it was the first version of that Plan, whereas Annexure AT-2 indicates, on its face, that it was revision number seven. This too tends to suggest that Annexure AT-2 is more likely to be the document finally agreed upon by Santos and Transfield. 221 Annexure AT-33 applied to employees whose employment would be covered by an enterprise agreement and to employees of subcontractors involved in the Santos CMS Contract engaged by Transfield. Annexure AT-2, on the other hand, applied to all Transfield employees engaged in the Santos CMS Contract as well as to subcontractors. Given the subject matter of the HRM Plans, it is not readily apparent why Santos would have wished that Transfield apply the Policies and Procedures which they contained to employees governed by enterprise agreements but not to "staff" employees. Accordingly, I conclude that it is Annexure AT-2 which is the relevant HRM Plan. 222 However, there remains a question as to whether it had any application to applicant's employment. He was not an employee supplied by Transfield to Santos or performing services on its behalf. His role, as already indicated, was the recruitment of employees to carry out the work which Transfield had contracted with Santos to provide. Put slightly differently, he was one of the employees engaged in the administering of the contract rather than in the provision of services to Santos under the CMS Contract. 223 The applicant relied on the statement in cl 3.2 under the heading "Scope" in Annexure AT-2: The HRMP applies to all Transfield Services employees engaged in the CMS Contract. The HRMP also applies to Transfield Services Subcontractors in terms of culture, values, standards and behavioural expectations, to ensure their approach to HR management, including employee relations, is consistent with that of Transfield Services and the CMS Contract. He emphasised the statement that the Plan applied to all employees engaged in the CMS Contract and contended that he was such a person. 224 To my mind, this clause is ambiguous as it is unclear whether it extends the scope of the HRM Plan to all employees of Transfield who may carry out some work in connection with the Santos CMS Contract, or applies only to those providing the services which Transfield had contracted with Santos to provide. It is readily understandable that Santos would be concerned about the latter and, accordingly, would have made proper human resource management principles with respect to such employees a contractual term. It is much less obvious that Santos would have the same concern with respect to those engaged by Transfield who would not be carrying out work on its behalf. 225 The point is made more obviously with respect to Mr Hall. If the applicant's contention be correct, then the HRM Plan also applied to Transfield's employment of him in the position as Project Director. It does not seem probable that Santos sought agreement from Transfield with respect to employment in such a senior position. 226 Accordingly, I doubt that the HRM Plan applied, on its own terms, to the applicant's employment. 227 However, even if that be wrong, there remains an issue of how a term of the contract between Transfield and Santos became a term of the applicant's contract of employment. The applicant sought to overcome this difficulty by pointing to the passages in his letter of employment set out earlier in these reasons by which Transfield's policies were made part of his contract of employment. 228 In my opinion, those passages do not assist the applicant. First, they make no reference to an HRM Plan. Secondly, the Policies and Procedures to which the letter of employment refers appear to be Transfield's own Policies and Procedures, and not those which it has agreed with a third party. Thirdly, the Policies and Procedures to which the letter of employment refers appear, at least by their description, to cover much of the same subject matter as does the HRM Plan. It seems improbable that Transfield would have included references to these Policies and Procedures in the letter of employment if it was intended that the relevant content of its obligations with respect to those matters was to be found in the HRM Plan. In this respect, it is also pertinent that the letter of employment contemplated that Transfield's Code of Business Conduct, its House Rules and its Equality and Diversity in the Workplace policy were attached to the letter of employment. There is no suggestion that the HRM Plan was similarly attached or brought to the applicant's attention as part of the letter of employment. 229 In these circumstances, I am not satisfied that the HRM Plan found in Annexure AT-2 was incorporated into the applicant's contract of employment. 230 The applicant's claim that the HRM Plan was incorporated by implication can be dealt with more shortly. As already noted, the applicant did not plead any of the facts, matters or circumstances on which it was said the alleged implication was based. 231 In those cases (such as the present) in which the parties have made a formal written contract that appears complete on its face, the Courts do not readily imply additional terms. The conditions which must be satisfied for such an implication are those stated in Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 422. The term must be: (a) Reasonable and equitable; (b) Necessary to give business efficacy to the contract; (c) So obvious that "it goes without saying"; (d) Capable of clear expression; (e) Not contradict any express term of the contract. 232 In the present case, the second and third of these conditions, at the very least, are not satisfied. Counsel for the applicant did not make any submission to the contrary. 233 This means that I am not satisfied that the HRM Plan contained in Annexure A-2 was incorporated into the applicant's contract of employment, whether expressly or by implication. That means in turn that the applicant's claim of breach of contract must fail. 234 This conclusion makes it unnecessary to consider Transfield's submission that, even if the HRM Plan was incorporated into the applicant's contract of employment, cl 7.4 on which the applicant relied, did not have contractual effect, being no more than aspirational in nature: see Goldman Sachs at [37]-[42]. 235 It is also unnecessary to consider whether, on the assumption that the HRM Plan did form part of the applicant's contract of employment, it had been breached. It is sufficient to say that in the light of my earlier findings, the applicant faced difficulties in that respect.

Summary 236 For the reasons given above, I consider that the applicant's claims wholly fail. It is accordingly unnecessary to consider the evidence and submissions concerning the forms of relief claimed by the applicant. 237 It is also unnecessary to consider Transfield's pleaded defence that s 54(1) of the Workers Rehabilitation and Compensation Act 1986 (SA) constituted a bar to the applicant's claims. I observe that Transfield did not develop any submission in respect of that plea. 238 The applicant's claims are dismissed. I certify that the preceding two hundred and thirty-eight (238) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice White.

Workers Rehabilitation and Compensation Act 1986(SA)

Fair Work Act 2009(Cth)ss 340, 341, 342, 361

12 As indicated, the applicant contends that the adverse action involved in the termination of his employment was taken because he had exercised "workplace rights" by making a complaint during the course of his employment. In relation to the EP Coordinator position, the applicant contends that Transfield refused to appoint him to this position because of his same exercise of workplace rights and because he had applied to the FWC for it to deal with the dispute arising from the termination of his employment (the FWC claim). 13 In the claim arising from the termination of his employment on 9 August 2013, the applicant relied upon s 341(1)(c)(ii) and upon paras (a), (b) and (c) of Item 1 in s 342(1). In relation to his claim of adverse action resulting from the respondent's refusal in September 2013 to employ him in the position of EP Coordinator, the applicant relied upon s 341(1)(c)(i) and upon Item 2(a) in s 342(1). 14 Section 361 of the FW Act has the effect that, upon proof by the applicant that he had exercised a "workplace right" and that Transfield has taken adverse action as defined, it is to be presumed to have taken that action for the reason alleged by the applicant unless it proves to the contrary: Jones v Queensland Tertiary Admissions Centre Ltd (No 2) [2010] FCA 399; (2010) 186 FCR 22 at [9]-[10]. 15 The resolution of this case does not require a review of the authorities bearing upon the discharge of the employer's onus under s 361. Both parties referred to Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500. See also Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41; (2014) 314 ALR 1. 16 It is necessary to keep in mind that the focus in a case like the present must be on whether the employer has taken the adverse action for a proscribed reason. It is not a review generally of the fairness of the employer's conduct. The Full Court made this point in Khiani v Australian Bureau of Statistics [2011] FCAFC 109 when it said: [31] ... A general protections application is not intended to provide an opportunity for the appellant to raise whatever issues she wishes to about the validity of the steps taken before her dismissal. The crucial issue in such an application is the causal relationship between adverse action and one or more of the factors mentioned in the various provisions of Pt 3-1. The issue is whether the person who has taken the adverse action has done so because the person against whom the adverse action has been taken has one or more of the relevant characteristics or has done one or more of the relevant acts. In the present case, the question is whether the respondent has taken adverse action against the appellant because she had a workplace right to be on sick leave, or because she had exercised that right. [32] The first question to be addressed in such a case is whether adverse action was taken. Determining this question requires identification of the adverse action alleged. ... 17 Transfield must demonstrate that proscribed factors were not "a substantial and operative factor" for the adverse action. The enquiry about this is a question of fact. 18 Before addressing the applicant's claims in more detail, it is appropriate to make findings concerning aspects of Transfield's employment hierarchy and the three complaints alleged by the applicant.

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