Veney v New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union

LEGISLATION CITED: Industrial Relations Act 1996

Allan John Veney and New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union [2007] NSWIRComm 1047 Allan John Veney and New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union [2007] NSWIRComm 1079 Beahan v Bush Boake Allen Australia Ltd (1999) 47 NSWLR 648 Blair and Ors v Curran and Ors (1939) 62 CLR 464 CASES CITED: Bowman v RiceGrowers Ltd (2007) 167 IR 325 Green v Brown (2002) 116 IR 21 Nagle (t/as WD & JL Nagle & Sons) v Tilburg (1993) 51 IR 8 Notaras v Knight [2008] NSWIRComm 219 Russell v The Trustees of the Roman Catholic Church for the Archdiocese of Sydney & Anor (2007) 69 NSWLR 198 Walker v Industrial Court (NSW) (1994) 53 IR 121

APPLICANT: Mr G Boyce of counsel

LEGAL REPRESENTATIVES: RESPONDENT: Ms KT Nomchong of counsel SOLICITORS: White Barnes

ALLAN JOHN VENEY v NEW SOUTH WALES LOCAL GOVERNMENT, CLERICAL, ADMINISTRATIVE, ENERGY, AIRLINES & UTILITIES UNION Application under s.106 of the Industrial Relations Act 1996

1 These proceedings, commenced in September 2007, were brought under s 106 of the Industrial Relations Act 1996 ('the Act'). Mr Veney complains about the alleged unfairness of his former contract of employment with the respondent, in relation to notice of termination, redundancy pay, payout of accumulated sick leave and the reimbursement of legal costs. The application follows earlier proceedings brought by Mr Veney under s 84 of the Act, in relation to the termination of his employment. That application was dealt with by Commissioner Murphy, who concluded that Mr Veney's dismissal had been 'harsh unreasonable and unjust on the basis of a flawed suspension process' and that reinstatement was impracticable. The Commissioner ordered money compensation of 20 weeks' pay. (See Allan John Veney and New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union [2007] NSWIRComm 1047.) Neither party appealed the decision and the compensation has been paid. 2 This judgment deals with an amended notice of motion filed by the respondent in September 2008, after the conciliation in these proceedings failed to produce any agreement. The motion seeks a declaration that the Court has no jurisdiction to hear or determine the claims advanced, given the operation of s 109A of the Act. In the alternative, the Court is asked to set the proceedings aside, or to stay them, as an abuse of process. In the further alternative, orders striking out, or setting aside aspects of the claims advanced were sought. 3 In essence, the respondent's complaint was that the summons seeks to revisit matters already litigated between the parties in the s 84 proceedings, or which ought to have been there litigated. In addition to the s 109A point, both issue estoppel and Anshun estoppel was said to arise and that principles of comity, or legal coherence, also operated so as to require the applicant to make an election between the claims advanced as to costs in the proceedings brought under s 84 of the Act, or those brought under s 106. 4 The applicant's case was that the proceedings brought under s 84 concerned the unfairness of his dismissal, while in these proceedings the relief sought concerned unfair terms of his contract of employment. In the s 84 proceedings, orders of compensation had been made in relation to the dismissal found to have been unfair. No issue or Anshun estoppel arose in these proceedings, from any of the conclusions and orders made in the s 84 proceedings. Nor was the application for orders in this case precluded by s 109A of the Act. 5 It was, in any event, too early a stage of the proceedings to determine the issues raised in the motion.

Section 109A of the Act 6 The section provides: 109A Exclusion of certain contracts in connection with unfair dismissals (1) This Division does not apply to a contract of employment that is alleged to be an unfair contract for any reason for which: (a) an application has been or could have been made by the employee under Part 6 (Unfair dismissals), or (b) such an application could have been made but for the provisions of section 83 that exclude the employee from making an application under that Part. (2) In this section: contract of employment means any contract or arrangement under which work is done by a person in the capacity of an employee, and includes a related condition or collateral arrangement with respect to such a contract. dismissal has the same meaning that it has in Part 6.

7 The meaning of the section was considered in Beahan v Bush Boake Allen Australia Ltd (1999) 47 NSWLR 648. The Full Bench's conclusions are binding and must be applied. There it was observed at p 692:

It is palpably clear, then, that s.109A has the purpose of removing from the unfair contracts jurisdiction those claims which are in truth or essentially involve unfair dismissals. In a very real sense, and having in mind the way in which this jurisdiction developed, such an approach is unexceptional. It is consistent with the views expressed by the Court and the former Industrial Commission in Court Session in cases such as Huskisson R.S.L. Sub-Branch Club v. Sullivan and BNY Australia v. James , as developed in the later cases of Westfield v. Helprin and Harcourt Brace v. Cory . Consistent with the approach there adopted are the decisions of the Court of Appeal, as earlier outlined, in Incitec v. Industrial Court, Walker v. Industrial Court and Rothmans Distribution Services v. Industrial Court . Indeed, the opening words of the explanatory note to the Bill as to its object "to remove the possibility of unfair dismissal claims being dealt with ... under provisions relating to unfair contracts" make that plain.

In short, our view is that s.109A operates to exclude a contract of employment from the operation of s.106 only where the unfair contract claim is an unfair dismissal claim in disguise and where essentially it is of the nature of an unfair dismissal. Where a claim challenges the terms or operation of a contract of employment by genuine, not superficial or coloured, reasons related to the contract itself then, in our view, it is a claim properly within s.106 and s.109A has no operation in relation to it. A review of the allegations made in the present case, we are satisfied, discloses allegations directed to the contract of employment and not to the applicant's dismissal. It is properly within s.106. Accordingly, the grounds supporting the motion have not been made out. 8 That approach has been considered and applied in a number of subsequent cases. In Bowman v RiceGrowers Ltd (2007) 167 IR 325, the Full Bench observed at [4] that Beahan 'does not stand for the bare proposition that, if a claim, or any part of it, could have been framed as an unfair dismissal claim, then s 109A prevents it being considered as an unfair contracts claim'. At [45], the Full Bench went on to observe:

[45] The Full Bench in Beahan held that where a claim challenges the terms or operation of a contract of employment by genuine, not superficial or coloured, reasons related to the contract itself, then it is a claim properly within s 106 and s 109A has no operation in relation to it (at 692; 42). Importantly, however, the Full Bench also held (at 664; 14) that s 109A is to be construed strictly so as to remove from s 106 only those contracts which unambiguously fall within the exclusion provided by its provisions. 9 The respondent particularly relied upon what was said by the President, Justice Boland, in Balsdon v Murray Irrigation [2003] NSWIRComm 251. There his Honour had to consider the situation of an employee dismissed on grounds of gross misconduct, who later commenced s 106 proceedings. The orders sought included orders of variation as to how complaints into the applicant's conduct would be investigated prior to dismissal; a two year roll over of the contract, unless the applicant was made redundant; an order restoring the applicant to his former employment and money orders for the intervening period. At [31] Boland J concluded that the summons did not reflect 'a genuine challenge to the terms of the contract' and concluded at [36]: 36 I have come to the conclusion for the reasons expressed above that Mr Balsdon's claim has all the hallmarks of an unfair dismissal claim and, in my opinion, should be treated as such. I find that the Court does not have jurisdiction to entertain Mr Balsdon's claim for the reason that pursuant to s 109A of the Act the claim could have been made under Ch 2 Pt 6 (Unfair dismissals) of the Act. Indeed, initially Mr Balsdon did lodge an unfair dismissal application but discontinued the claim. No reason was given for discontinuing but I note that MIL had contended Mr Balsdon was excluded from the Commission's unfair dismissal jurisdiction by virtue of the operation s 83(1)(b) of the Act because his conditions of employment were not set by an industrial instrument and his annual remuneration exceeded the relevant amount prescribed by the regulations.

The case advanced in the s 84 proceedings 10 In this case, there is no question that the fairness of Mr Veney's dismissal was attacked in the s 84 proceedings on the basis that there had been no proper foundation for the dismissal; that it was unfair having regard to his long year's of service with the respondent; and that the dismissal had an unfair impact upon him, given the consequences for his superannuation entitlements and loss of substantial accrued sick leave. 11 Both Mr Veney and the respondent are pursuing costs orders in the s 84 proceedings, relying on the provisions of s 181 of the Act, which provides relevantly: 181 Costs (1) Subject to the rules of the Commission and any other Act or law: (a) the Commission may award costs, and (b) costs are in the discretion of the Commission, and (c) the Commission may determine by whom and to what extent costs are to be paid, and (d) the Commission may order costs to be assessed on the basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004 or on any other basis. (2) However, the Commission when it is not in Court Session may award costs only in the following cases: (a) the Commission may award costs against an applicant if it considers that the application to it was frivolous or vexatious, or (b) the Commission may award costs against a party to proceedings who, in the opinion of the Commission, instituted proceedings without reasonable cause, or (c) the Commission may award costs against a party to proceedings under Part 6 of Chapter 2 (Unfair dismissals) who, in the opinion of the Commission, unreasonably failed to agree to a settlement of the claim or whose application was frivolous or vexatious, or ... (4) In this section, costs includes: (a) costs of or incidental to proceedings in the Commission, and (b) in the case of an appeal to the Commission, the costs of or incidental to the proceedings giving rise to the appeal, as well as the costs of or incidental to the appeal.

12 The Commissioner has deferred giving his decision on costs in the s 84 proceedings, pending resolution of the respondent's motion in these proceedings. Apparently that resulted from an application made by the respondent. Why the application was made, or acceded to, is a little difficult to understand, given that the question of costs in the s 84 proceedings depends upon a view being formed as to whether in those proceedings, either party 'unreasonably failed to agree to a settlement of the claim or whose application was frivolous or vexatious'. 13 Be that as it may, the result of the approach adopted means that the Commissioner's views as to the question of costs lying between the parties, are not known.

The redundancy claim 14 On the evidence, I am satisfied that this is the appropriate time to determine this question, given that what was said by the Full Bench in Nagle (t/as WD & JL Nagle & Sons) v Tilburg (1993) 51 IR 8 at 10-12. 15 There is no question that the Commissioner came to a conclusion as to the reason why Mr Veney was dismissed, that being put in issue by Mr Veney in the s 84 proceedings. In his decision Murphy C concluded as to the reasons for Mr Veney's dismissal and its fairness, that:

SUMMARY/CONCLUSION 337 Mr Veney's long employment with the union was far from unblemished, being characterised by a series of generally well-grounded formal warnings. 338 His more recent behaviour displaying defiance of management initiatives, particularly in the 18th July assessment interview, understandably attracted the anger of senior officers, concerned with strategy to meet the WorkChoices challenge to union power. He received further strongly worded warnings, accompanied by a series of counselling sessions throughout August, 2006 involving senior officers of the union. His apologies given at the time, or at least the earlier ones, were marred to an extent by a degree of hedging or qualification, and were therefore not well received, especially by Mr Want and Mr Hughes. He eventually appeared to offer unqualified contrition but there was evidence that at all the conferences in August, his demeanour and apparent attitude left some of those present with the impression that he did not genuinely recognise any fault. His evidence of reconciling his claim of not being at fault, with the fact that he did apologise - "I was apologising because I was required to apologise and I genuinely wanted to apologise for upsetting people" - did not explain the conflict in his stance. 339 This left the Commission satisfied that the three warnings given to him were not simply a ploy to hasten his departure, but by the same token the Commission was not able to give the same power to the "final, final" warning given to him on 31st August, 2006, as attributed by Ms Nomchong. 340 The crucial meeting of 13th September, which resulted in his suspension and recommendation for dismissal by the then General Secretary, Mr Harris, was found to have been blighted by a repeat of disrespectful behaviour towards management seeking an explanation as to his activities over the previous four to five weeks, following a complaint from Warringah Council delegates that he had not visited them since taking over as organiser. The Commission found that recalcitrant behaviour at that interview to be established on the evidence of three persons present, despite what was finally judged to be some minor inconsistencies in the respondent's account, especially when compared with the flaws found in sections of the applicant's evidentiary approach. 341 However, whilst the applicant was found to have effectively provoked his own suspension, the Commission has had to be open to the strong claim by Mr Moorhouse that the applicant was also effectively ambushed, even though this may not have been intended by those claiming to have simply sought to interview him about a serious complaint just received from Warringah delegates. The inescapable conclusion from the lack of notice as to the nature of the meeting was the likelihood of significant prejudice to the applicant's ability to explain and defend himself. Even though a disciplinary interview as such was not intended, the result was just that, although the applicant was not justified in reverting to type in his responses, which he himself admitted were annoying to Mr Harris at the time. 342 Having regard to major precedents referred to me by Counsel, the Commission has accepted the paramountcy of the employer's obligation to provide procedural fairness in this situation confronting Mr Harris, who had other options available. But the applicant's contribution to his own fate at that conference was a matter to be taken into account in the question of remedy, along with the applicant's obdurate position, in effectively turning his back on the opportunity to influence the Executive's decision on Mr Harris' recommendation for his termination on the 18th September, 2006. 343 The Commission has not accepted that the 18th September decision was procedurally flawed on the basis of Mr Moorhouse's submission as to: (i) The broad range of the recommendation to it; or (ii) The refusal to grant the belated request by Mr Veney's lawyers to delay the decision; or (iii) That his resulting dismissal robbed him of the opportunity of obtaining injunctive relief through his Threatened Dismissal application already filed. The applicant's actions were understandably seen as a simple delaying tactic and arrived too late to be respected, as well as being likely to have robbed the respondent of its own opportunity of controlling the situation on its terms. Ms Nomchong's submission that he could have phoned the likes of Mr Harris and Mr Kruse, would have been a reasonable thing for him to do, from Thursday onwards over the weekend. 344 The applicant was found to have passed up a tangible opportunity, albeit brief, to influence the Executive's decision, which was the second phase of termination, although crucial to the respondent's process and which he had successfully sought leave to do. 345 That aspect was also to be regarded as a further contribution by Mr Veney to his own demise, to be considered in respect of any remedy available. 346 The earlier procedurally unfair nature of the suspension on 13th September, although needing to be weighed against the applicant's provocative conduct, was apparently not something which occurred to the Executive. They may however have been made more conscious of that shortcoming by Mr Veney had he attended as originally planned and made the sort of representations listed earlier, including the need to be given notice of Mr Harris' range of matters in his recommendation to the Executive. 347 Accordingly, the applicant's dismissal on the 18th September, 2006 has been found to be harsh, unreasonable and unjust on the basis of a flawed suspension process, carried over into his dismissal on 18th September, 2006, and for the reasons stated, should attract the Commission's qualified intervention. 16 As the respondent submitted, the Commissioner makes no reference in his decision to the idea that the true reason for Mr Veney's dismissal was redundancy. This is entirely as the result of a course which Mr Veney decided to take in the s 84 proceedings. The letter of dismissal advised Mr Veney that:

On 13 September 2006 you were interviewed by Michael Want and myself in the presence of Paul Reid, Staff Representative.

The purpose of the interview was to discuss complaints received from Delegates that you had not visited them since you were allocated their councils, which had taken place approximately 1 month earlier. During the interview when questioned on your weekly information sheets you continually claimed that you could not remember where you were and what you had performed, even on Tuesday afternoon 12 September, you could not recollect what duties you had performed.

A final formal warning was issued on 31 August 2006 which related to your behaviour towards Management during an assessment interview. This resulted in you being counselled in respect to your unacceptable behaviour and attitude.

At the conclusion of the interview on 13 September 2006 I removed your car, phone and access cards and stood you down on pay and advised you that I would be making a recommendation to the Executive on 18 September 2006 that your services be terminated. In addition I also authorised Paul Reid to assist you in preparation for your defence in this matter. I also advised you that you could make a submission to the Executive in your defence. We received notification from your legal adviser that you would not be attending.

The Executive at its meeting on 18 September resolved that your employment be terminated as from 18 September 2006. Payment in lieu of notice will be paid in accordance with all your statutory entitlements. However the Union's Policy benefits will not apply.

Your statutory entitlements will be transferred by EFT to your nominated account.

17 Mr Veney was cross examined as to what he believed the reason for his dismissal was. In cross examination, Mr Veney said:

NOMCHONG: Q. At the conclusion of the meeting on 13 September, you understood that the reason Mr Harris was recommending your termination was because of your continuing course of conduct in being rude, disrespectful and uncooperative with the management, didn't you? A. No.

Q. You say honestly to this Commission, do you, that that was not your understanding of the reason why your termination was being recommended? A. That is right.

Q. I see. A. I understand that the recommendation was because I didn't visit two councils.

Q. I see. All right. Well, we'll get to that, thank you. Now, to your knowledge, Mr Veney, the executive accepted Mr Harris' recommendation at the meeting on 18 September 2006? A. Yes.

Q. Now, you would agree with me that that letter makes it clear that you were being terminated because of your uncooperative behaviour and attitude at the meeting on 13 September. Would you agree with that? A. No.

Q. And that you understood that this represented the final episode in a long line of poor behaviour on your part towards management? A. No.

Q. Now, are you honestly saying to this Commission, Mr Veney, that you were under the impression that the reason that your that your employment was being terminated was by reason of the fact that complaints had been made by delegates at Warringah and North Sydney Council? A. Yes.

Q. I see. All right. Well, between the date that you were suspended on 13 September and the executive meeting on the following Monday, 18 September, you filed an application seeking relief in respect of a threatened unfair dismissal. That is correct, isn't it? A. Yes.

18 The hearing before the Commissioner concluded on 30 July 2008. While the proceedings were on foot, Mr Veney had averted to the possibility that he would also pursue s 106 proceedings against the respondent. It was not until after the hearing of the s 84 application had been concluded, on the last day of the 12 month limitation period for taking s 106 proceedings, that Mr Veney filed and served the s 106 summons. It was served under cover of a letter from Mr Veney which advised the respondent that:

Please find herewith unfair contract summons filed with the Industrial Registrar yesterday. As you are aware, the Commission's decision relating to the unfair dismissal case remains reserved. In the event the Commission orders reinstatement, I will discontinue the unfair contract proceedings.

The Summons was filed due to the 12 month time limit, however I invite you to take no response until the decision in the unfair dismissal case is known because costs may be wasted. 19 There can obviously be no criticism of Mr Veney exercising the rights granted by s 106, if he has them. The limitation period imposed by the Act had to be observed and, if the Commissioner had made the orders which Mr Veney sought in the s 84 proceedings, namely reinstatement, some, at least of the orders sought in the s 106 proceedings would have fallen away. That explains, no doubt, Mr Veney's advice that if he was successful in obtaining reinstatement orders, that he would discontinue the s 106 proceedings. Again, I am unable to accept that Mr Veney may properly be criticised for taking that course. 20 Once the s 106 summons was served, the respondent sought to re-open the s 84 proceedings, filing a notice of motion seeking leave to tender the material which had been served by Mr Veney in the s 106 proceedings. From the respondent's point of view, that was an understandable application, given that in his s 106 summons, Mr Veney sought to advance a claim which he had not made in the s 84 proceedings, namely that the real reason for the dismissal had been redundancy. The respondent wished to argue that what was claimed in the s 106 proceedings was relevant to what the parties had already argued in s 84 proceedings and raised issues going to Mr Veney's credit. 21 The application was opposed by Mr Veney at the hearing before the Commissioner on 15 October. On 19 October, Murphy C refused the leave sought by the respondent, given that further substantial time and costs would flow, if the leave were granted and that there would not be significant prejudice to the respondent, if the leave were refused. (See Allan John Veney and New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union [2007] NSWIRComm 1079.) On 23 October, Murphy C gave his decision, finding that the dismissal was unfair, but refusing to order reinstatement. 22 Despite the argument now advanced for Mr Veney in these proceedings, it cannot be doubted that Mr Veney seeks here to argue that, contrary to the conclusions which the Commissioner has reached, as to reason for the dismissal, the real reason was redundancy. The summons seeks in Part A an order that:

(2) An order that the Contract be varied in the following respects from its commencement on or from such other times as the Court considers just in the circumstances of the case: (b) If the Applicant is terminated for any reasons, other than for serious misconduct, in circumstances where no offer of redundancy is made to the applicant and, (i) the Applicant's position is surplus to the Respondent's operational needs and/or the Applicant's position is not replaced for at least 6 months after the termination of his employment, then the Applicant shall be paid, in addition to any required period of notice or payment in lieu thereof, the severance payment and other payments on termination which he would have received if an offer of redundancy had been made to him and accepted by him.

23 In Part B, it is relevantly said as to the matters of fact and law which will be relied upon to support that order, that:

6. It was a term of the Applicant's employment that if his position became redundant and an offer of redundancy was made to him that he would be entitled to severance pay at the rate of 3 weeks per year of service, plus all of his accrued untaken sick leave, plus his other accrued entitlements at the date of termination.

14. The termination of the Applicant's employment by the Union was not for serious misconduct and the Applicant received five (5) weeks pay in lieu of notice.

15. On about 28 September 2006 the applicant was paid his accrued annual leave and long service leave entitlements. On 16 October 2006, almost one month after the date of his termination, the Applicant received a further payment from the Union of $3,980. The Applicant understands this amount as being five weeks' net pay in lieu of notice, although he has not received any payslip or other document from the Union confirming the nature of this payment. The Applicant did not receive any payment on termination in respect of his accumulated sick leave entitlement. The Applicant did not receive any severance payment on termination. ... 22. From about January 2006 onwards, the Union was moving towards a model of service delivery for members and delegates which involved members and delegates initially contacting a central call centre rather than the individual organisers. One of the intended effects of this model of service delivery was a reduction in the amount of individual queries and grievances required to be handled by organisers, and a consequent reduction in the workload of organisers. 23. Later in 2006, two of the Union's full-time metropolitan organisers, Mr Jason Kelly and Mr Glen Hugo resigned, and the Councils for which they had responsibility had been reallocated pending the permanent reallocation described in the next paragraph, Mr Kelly and Mr Hugo were not replaced.

24. With effect from approximately 11 August 2006 the Union reallocated the Councils for which each of the metropolitan local government organisers were responsible. As part of this reallocation, the Applicant was allocated responsibility for nine Councils, none of which he had previously had responsibility for immediately prior to the reallocation, replacing the five councils previously allocated. 25. The Union's decision to terminate the Applicant's employment was made in circumstances where the Union had considered that his position was surplus to its operational requirements, or alternatively that the Unions had more metropolitan local council organisers than its operational requirements justified.

26. Since the termination of the Applicant's employment, the Union has not sought to fill his position on a permanent basis, and another employee of the Union has been seconded from a different area to fill the role temporarily. At the time of verifying this Summons, to the best of the Applicant's knowledge no new employee has been engaged by the Union to fill the Applicant's position.

27. In about January 2007 another full-time metropolitan organiser, Mr Shane Roulstone, also left the employment of the Union. This meant that four full-time metropolitan organisers had left the Union since about June 2006 (Mr Kelly, Mr Hugo, the Applicant and Mr Roulstone). Following Mr Roulstone's departure the Union has sought to fill one metropolitan organiser position.

28 On 18 September 2006 Mr Mark McLeay, the Union's metropolitan manager, had all of his duties removed from him. Mr McLeay's position was not formally made redundant until about December 2006. Mr McLeay subsequently left that Union's employment or around January 2007. In connection with his departure from the Union Mr McLeay received a redundancy payment.

30. The Applicant's employment contract with the Union was or became unfair, harsh or unconscionable, and/or against the public interest, because:

... (b) it permitted the Union to terminate the Applicant's employment in circumstances where the Applicant's position was surplus to the Respondent's operational needs without requiring the Union to acknowledge that the position was surplus to requirements or make the payments required to be made to employees whose position is declared redundant; ...

(e) it permitted the Union to pay to the Applicant compensation on termination of employment which was significantly less than the compensation provided to other employees removed from employment at around the same time;

24 In Part D of the summons, the money orders sought in relation to redundancy amounts to $114,993. 25 Had the claim that the real reason for dismissal was redundancy been ventilated in the s 84 proceedings, it would plainly have been relevant to what the Commissioner was there called on to determine, namely whether or not the decision to dismiss Mr Veney was 'harsh, unreasonable or unjust'. Had Mr Veney succeeded in establishing that he was dismissed in circumstances of redundancy, the prospect of a reinstatement order being made, would undoubtedly have been diminished. That was what Mr Veney sought in the s 84 proceedings, understandably, given the evidence led as to the considerable consequences of his dismissal upon his superannuation and sick leave entitlements. Nevertheless, Mr Veney was cross examined as to what he understood the reasons for his dismissal to have been. He was obliged to answer that question honestly. Given the claim made in the s 106 proceedings, the summons supported as it was by an affidavit in support sworn by Mr Veney, that Mr Veney was not forthcoming as he ought to have been, in the s 84 proceedings, in relation to a belief that the true reason for his dismissal was redundancy, cannot be open to doubt. 26 Had that issue been ventilated in the s 84 proceedings, undoubtedly, the Commissioner could not have ordered the respondent to pay Mr Veney his contractual entitlements to redundancy pay, if he had found that was the true reason for the dismissal. The provisions of s 380 of the Act limit orders which can be made in such proceedings by the small claims process established by s 379 of the Act. Mr Veney would, by that decision, however, have unarguably established his right to such a redundancy payment in accordance with his contract. 27 What Mr Veney was not entitled to do was to advance one reason as the true reason for his dismissal in the s 84 proceedings and another, in these proceedings. 28 In this case, the claim that in truth Mr Veney was dismissed on account of redundancy, can only be established upon an evidentiary case being run, which will not only seek to advance a different reason for the dismissal to that advanced by the respondent in the s 84 proceedings, but also a different reason to that advanced by Mr Veney in those proceedings and the view reached by Commissioner Murphy. 29 I am satisfied that s 109A does not permit such an approach. Clearly, a claim that the true reason for his dismissal was redundancy, was a claim which Mr Veney could and ought to have advanced in the s 84 proceedings. He was not entitled to reserve that claim to be argued in these proceedings. Section 109A makes it clear that s 106 proceedings may not be brought in relation to a contract of employment that is alleged to be an unfair contract for any reason for which an application has been or could have been made in s 84 proceedings. 30 If, in truth, the reasons for the dismissal had been redundancy as Mr Veney now seeks to claim, rather than the reason advanced by the respondent on Mr Veney's dismissal and the view put forward by Mr Veney in the s 84 proceedings, Mr Veney ought to have pursued that claim in the s 84 proceedings. If true, that would undoubtedly have demonstrated the unfairness of the dismissal and would have established, beyond question, that Mr Veney was entitled to the money orders which he now pursues in these proceedings in relation to redundancy. In his submissions, Mr Boyce confirmed that the money orders sought in Part D(b) of the summons reflects a calculation based on Mr Veney's existing contractual right to redundancy pay, calculated on the basis of three weeks' pay per year of service. 31 So seen, the claim is, in reality, a claim for enforcement of a contractual right. The argument that a proper characterisation of the claim advanced in these proceedings is that it is not truly a redundancy claim, but rather, a variation of the contract seeking a payment to be made in any circumstances other than dismissal for serious misconduct, pays no proper attention to what is advanced in Part B of the summons, or indeed to how the order in Part A is couched by reference to the position being 'surplus to the Respondent's operational needs' and/or the position not having been 'replaced for at least 6 months after termination'. On any ordinary definition, that is a redundancy. 32 The authorities require that the Court take account of the substance, not the form of any claim advanced. In this case it must be concluded that in reality, the order sought is concerned with redundancy pay flowing from a termination on account of redundancy, in circumstances where the reason for the decision to dismiss has already been litigated between the same parties on other grounds in the s 84 proceedings. As such the claim is precluded by s 109A, it being a claim which goes to the reason for the decision to dismiss, not the fairness of the termination provisions of the contract. 33 The approach which Mr Veney has sought to adopt is also clearly not available on other grounds, given that it also undoubtedly gives rise to an Anshun estoppel point, or issue estoppel. 34 For Mr Veney, reliance was placed on what Dixon J observed in Blair and Ors v Curran and Ors (1939) 62 CLR 464 at 531-2:

A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion, whether that conclusion is that a money sum be recovered or that the doing of an act be commanded or be restrained or that rights be declared. The distinction between res judicataand issue-estoppel is that in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order.

Nothing but what is legally indispensable to the conclusion is thus finally closed or precluded. In matters of fact the issue-estoppel is confined to those ultimate facts which form the ingredients in the cause of action, that is, the title to the right established. Where the conclusion is against the existence of a right or claim which in point of law depends upon a number of ingredients or ultimate facts the absence of any one of which would be enough to defeat the claim, the estoppel covers only the actual ground upon which the existence of the right was negatived. But in neither case is the estoppel confined to the final legal conclusion expressed in the judgment, decree or order. In the phraseology of Coleridge J. in R. v. Inhabitants of the Township of Hartington Middle Quarter (1855) 4 E. & B. 780, at p. 794 [119 E.R. 288], at p. 293, the judicial determination concludes, not merely as to the point actually decided, but as to a matter which it was necessary to decide and which was actually decided as the groundwork of the decision itself, though not then directly the point at issue. Matters cardinal to the latter claim or contention cannot be raised if to raise them is necessarily to assert that the former decision was erroneous.

35 The case does not assist Mr Veney, given that the question of the reasons for the dismissal is raised in both the ss 84 and 106 proceedings. The Commissioner had to determine what the reason for the dismissal was, in the s 84 proceedings, in order to determine whether the dismissal was 'harsh, unreasonable or unjust'. The parties joined issue as to what the reason for the dismissal was. In the s 84 proceedings, Mr Veney could and ought to have advanced the claim which he now seeks to agitate in the s 106 proceedings, namely that the true reason for the dismissal was redundancy. Having elected not to do so, he is plainly estopped from raising that claim now in these proceedings. The issue of the reason for the dismissal has been decided once and for all by the Commissioner. 36 The question of Anshun estoppel was recently considered by a Full Bench in Notaras v Knight [2008] NSWIRComm 219 at [22] to [32]:

22 This principle derives its name from the judgment of the High Court of Australia in Port of Melbourne Authority v Anshun Pty Ltd (1980-1981) 147 CLR 589. Those proceedings followed a claim for personal injuries brought by a plaintiff who had suffered an injury arising out of the use of a crane. He sued both the hirer of the crane and the owner of the crane and was successful in obtaining an award of damages against both defendants, both making a contribution to the payment of the damages and costs. Later, the owner of the crane sought a total indemnity for all amounts paid by it from the hirer under the provisions of the hiring agreement. The High Court held that the owner should not be permitted to sue on the indemnity clause in the hiring agreement because, essentially, the claim for the indemnity could have been raised by the owner in the original proceedings. "It was so closely connected with the subject matter of that action that it was to be expected that it would be relied upon as a defence to that claim and as a basis for recovery by the Authority from Anshun. The third party procedures were introduced to enable this to be done. If successful, the indemnity case would have obviated an enquiry into contribution. If reserved for assertion in a later action, it would increase costs and give rise to a conflicting judgment." (Per Gibbs CJ, Mason and Aickin JJ at 604).

23 The joint judgment of Gibbs CJ, Mason and Aickin JJ was based, essentially, on a principle established in England in 1843. Their Honours said: "The critical issue, then, is whether the case falls within the extended principle expressed by Sir James Wigram V.C. in Henderson v. Henderson (1843) 3 Hare, at p 115 (67 ER, at p 319). The Vice-Chancellor expressed the principle in these terms: 'where a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.' (At p598)"

24 The joint judgment contains a detailed discussion of the basis for the development of the principle and the circumstances in which it might be applied. The joint judgment recognises that there may be circumstances in which it is appropriate to refrain from raising a particular issue or matter in proceedings and a party may be permitted to institute separate proceedings with respect to that particular issue or matter without offending the principle. Indeed, there continues to be debate about the nature and extent of the Anshun principle in particular circumstances. We instance the discussion in the Supreme Court of Victoria Court of Appeal in Triantafillivs v National Australia Bank Ltd [1995] V.Conv.R [54] - 536 and Bill Gibbs and McAllion Lloyd Pty Ltd v Kinna [1998] VSCA 52. We refer also to the extensive consideration of the Anshun doctrine by a Full Bench of this Court in Green v Brown [2002] NSWIRComm 177 (Wright J President, Walton J Vice-President and Boland J) especially at [40] and following.

25 Because of the conclusion that we have reached regarding the application of the Anshun principle to these proceedings, it is not necessary to consider the nature and extent of the principle and the qualifications which have been suggested to its application further, save for a reference to the judgment of the House of Lords in Johnson v Gore Wood and Co (a firm) [2002] 2 AC 1.

26 In those proceedings, the appellant had carried on a property development business using a company structure. The company encountered financial difficulties as a result, allegedly, of the conduct of its solicitors. It brought proceedings claiming damages for professional negligence against those solicitors. The solicitors were aware that at all times the appellant intended to bring a claim for professional negligence against them in his own right. The company settled the proceedings and as part of the settlement negotiations the appellant undertook that in any claim which he brought personally against the solicitors he would limit the amount of certain aspects of the claim. He subsequently commenced those proceedings and the solicitors applied to have the proceedings stayed as constituting an abuse of process. The matter was considered on appeal by the House of Lords.

27 The proceedings were based upon the principles established in Henderson v Henderson , the same principles which were at the heart of the reasons for the joint judgment in Anshun . The principal speech in the House of Lords concerning this aspect of the proceedings was that of Lord Bingham of Cornhill (Lords Goff, Cooke and Hutton agreeing with his Lordship's reasoning. Lord Millett delivered separate reasons.) Lord Bingham cited with approval the judgment of the Court of Appeal in Barrow v Bankside Members Agency Ltd [1996] 1 All ER 981 in which it was said: "The rule in Henderson v Henderson …is very well known. It requires the parties, when a matter becomes the subject of litigation between them in a court of competent jurisdiction, to bring their whole case before the court so that all aspects of it may be finally decided (subject, of course, to any appeal) once and for all. In the absence of special circumstances, the parties cannot return to the court to advance arguments, claims or defences which they could have put forward for decision on the first occasion, but failed to raise. The rule is not based on the doctrine of res judicata in a narrow sense, nor even on any strict doctrine of issue or cause of action estoppel. It is a rule of public policy based on the desirability, in the general interest as well as that of the parties themselves, that litigation should not drag on forever and that a defendant should not be oppressed by successive suits when one would do. That is the abuse at which the rule is directed." ((1996) 1 All ER 981 at 983)

28 However, Lord Bingham counselled that care needs to taken in applying the principle. It is necessary to consider all of the circumstances of the proceedings including the circumstances of the litigants. At 30 - 1 his Lordship said: "It may very well be, as has been convincingly argued (Watt, "The Danger and Deceit of the Rule in Henderson v. Henderson : A new approach to successive civil actions arising from the same factual matter," 19 Civil Justice Quarterly, (July 2000), page 287), that what is now taken to be the rule in Henderson v. Henderson , has diverged from the ruling which Wigram V.-C. made, which was addressed to res judicata. But Henderson v. Henderson abuse of process, as now understood, although separate and distinct from cause of action estoppel and issue estoppel, has much in common with them. The underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole. The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all. I would not accept that it is necessary, before abuse may be found, to identify any additional element such as a collateral attack on a previous decision or some dishonesty, but where those elements are present the later proceedings will be much more obviously abusive, and there will rarely be a finding of abuse unless the later proceeding involves what the court regards as unjust harassment of a party. It is, however, wrong to hold that because a matter could have been raised in early proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before. As one cannot comprehensively list all possible forms of abuse, so one cannot formulate any hard and fast rule to determine whether, on given facts, abuse is to be found or not. Thus while I would accept that lack of funds would not ordinarily excuse a failure to raise in earlier proceedings an issue which could and should have been raised then, I would not regard it as necessarily irrelevant, particularly if it appears that the lack of funds has been caused by the party against whom it is sought to claim. While the result may often be the same, it is in my view preferable to ask whether in all the circumstances a party's conduct is an abuse than to ask whether the conduct is an abuse and then, if it is, to ask whether the abuse is excused or justified by special circumstances. Properly applied, and whatever the legitimacy of its descent, the rule has in my view a valuable part to play in protecting the interests of justice."

29 It will be remembered that in Johnson the initial claim brought by the company against the solicitors had been settled by way of a compromise. It had been argued before the House of Lords that the rule in Henderson v Henderson did not apply because of the compromise result in the initial proceedings. Lord Bingham rejected this argument. His Lordship said: "An important purpose of the rule is to protect a defendant against the harassment necessarily involved in repeated actions concerning the same subject matter. A second action is not the less harassing because the defendant has been driven or thought it prudent to settle the first; often, indeed, that outcome would make a second action the more harassing." (At 32). In the course of his submissions in these proceedings, Mr Knaggs, who appeared for the appellant, relied heavily on this observation. It was his contention that the appellant, as defendant, having compromised the first proceedings should not be put to the harassment involved in the second proceedings.

30 However, to accept the observations of Lord Bingham as creating some universal or blanket principle to be applied is, in our opinion, misleading. That is because his Lordship and the House of Lords held that in the circumstances of Johnson v Gore Wood , the Henderson v Henderson principle should not be applied so as to constitute the second proceedings as an abuse of process even allowing for the fact that the first proceedings had been compromised. This was because, in his Lordship's opinion, the firm of solicitors in compromising the claim brought by the company in effect agreed that the further proceedings brought by the individual personally would not constitute an abuse of process because there was an assumption that such proceedings would be brought. Accordingly, it would be "unfair or unjust" to allow the solicitors to go back on that assumption.

31 In so concluding, his Lordship relied upon a statement of Lord Denning MR in Amalgamated Investment and Property Co Ltd (in Liq) v Texas Commerce International Bank Ltd [1981] 3 All ER 577 at 584 where his Lordship said: "The doctrine of estoppel is one of the most flexible and useful in the armoury of the law. But it has become overloaded with cases. That is why I have not gone through them all in this judgment. It has evolved during the last 150 years in a sequence of separate developments: proprietary estoppel, estoppel by representation of fact, estoppel by acquiescence, and promissory estoppel. At the same time it has been sought to be limited by a series of maxims: estoppel is only a rule of evidence, estoppel cannot give rise to a cause of action, estoppel cannot do away with the need for consideration, and so forth. All these can now be seen to merge into one general principle shorn of limitations. When the parties to a transaction proceed on the basis of an underlying assumption - either of fact or of law - whether due to misrepresentation or mistake makes no difference - on which they have conducted the dealings between them - neither of them will be allowed to go back on that assumption when it would be unfair or unjust to allow him to do so. If one of them does seek to go back on it, the courts will give the other such remedy as the equity of the case demands."

32 Accordingly, as has already been observed, the totality of the circumstances of the proceedings needs to be considered in determining whether or not the Anshun principle is to operate. 37 Here, it cannot be overlooked that the reason for the dismissal was in issue in the s 84 proceedings. That matter may not be re-litigated in these proceedings. Mr Veney was obliged to bring his whole case in the s 84 proceedings as to the reasons for the dismissal.

The sick leave claim 38 I am unable to come to the same conclusion in relation to the sick leave claim. 39 Under Mr Veney's contract, he was entitled to be paid out untaken sick leave, if he resigned or retired, but not if he was dismissed. He was given the opportunity to resign before being dismissed, but refused to take that opportunity. In the s 84 proceedings Mr Veney relied on the consequence of his dismissal, the loss of the sick leave entitlements, to demonstrate the unfairness of the dismissal. 40 The Commissioner does not refer to this in the conclusions which he reached as to the unfairness of the dismissal. Nevertheless, the respondent argued that it was a matter taken into account by the Commissioner in calculating compensation. As to this, the Commissioner said: R E M E D Y

348 The Commission has taken into account the submissions of the respondent in respect of the applicant's efforts to achieve other employment and whilst he might have broadened his basis for applying for positions, the Commission cannot find the same level of fault as urged by Ms Nomchong. It is understandable, as explained in his oral evidence, that he sought employment in the Local Government sector, so as to pick up on his superannuation accumulated benefits. His earnings since dismissal were shown to be minimal in comparison to his overall loss. 349 The unusual difficulty for the applicant, given his age and background as a union official over eighteen years, has also been taken into account by me. The detriment to his superannuation, although not accepted as a mathematical exercise for me, is a relevant consideration and I have been comfortable in not needing to argue against the more generous calculation of his superannuation, by expert witness, Mr Martin Stevenson, for the reasons identified by Mr Moorhouse. On that basis I have not had to agree or disagree with his logic as to the more likely loss and also as to why it should not be held against Mr Veney, that he chose not to take out maximum benefits on the basis that he had the choice of doing so towards the close of his career. 350 The important question of the primary remedy of reinstatement or re-employment claimed by Mr Veney has had to be considered by me with unusual care, even though I have arrived at a finding that Mr Veney must take some significant responsibility for both his suspension and his later dismissal because of his own actions and lack of action. The contributory factor has weighed heavily when deciding that, even if his own provocative conduct and his failure to exercise his right to plead on 18th September, 2006, were not so important, there is still the issue of his behaviour both before and after dismissal which must count against a practical re-establishment of the relationship, which I have separately assessed on the question of remedy. 351 I have preferred Mr Kruse's evidence that the applicant, after his dismissal, offered a distasteful threat to gain sponsorship from forces unfriendly to the union movement and that he made derogatory comments as to the "brand of unionism" in a job application to Woollahra Council. Both instances were a significant barrier to restoration, especially when combined with the ample evidence that the applicant was found not to be a team player throughout his career and the applicant's denials of this did not suffice against several clear indicators of being difficult to manage. Mr Donley, who would be his supervisor, was uncomfortable with a reinstatement. This problem became readily apparent, especially with the changes to skills assessment and training proposed to counter the seismic shift in the industrial relations scene through the WorkChoices legislation, which threatened the union's viability. 352 Whilst Mr Harris had left the union shortly after the applicant's dismissal, there were several senior officers involved in his disciplinary process, who would have to contend with Mr Veney's return. He was found to be too much in denial on a variety of occasions and reinstatement might well lead him to believe that he could continue in a challenging manner to any attempt at supervision, although to adopt Ms Nomchong's description of him being likely to consider himself as "bullet proof", overlooks that it is unlikely that anyone having been dismissed once, would relish a return trip. Related to this aspect, he was found to be unwilling or unable to recognise his defiant conduct when he provoked his own suspension and unreasonably declined the opportunity to convince the Executive not to dismiss him in favour of a dubious tactic of delay. 353 Also relevant to the question of practicality is that the position occupied by Mr Veney of organiser is a strategic position within the union with an increasing rate of interaction with dispute litigation and, combined with the greater risks for union activities under Federal legislation of 2006, including substantial fines, the question arises as to whether the union should not be able to ensure greater control over the conduct of its organisers. 354 The decision of His Honour, Mr Justice Sheldon in the landmark case of Loty and Holloway Vs Australian Workers Union, 1971 AR @95 is relevant to this point. Although there have been many more recent authorities generally to draw upon on the question of practicality of reinstatement, the comments of His Honour upon the role of the industrial officer, (a position occupied by Mr Loty) spring to mind as being apposite to Mr Veney's role of organiser. There at page 109 His Honour commenced: "Industrial representation in many instances is not a matter of speaking from a textbook or a prepared brief. Particularly in conciliation proceedings, where usually no legal representation is used, problems may arise instantly which can be best handled by an advocate whose ear is sympathetically turned to current union policies. The whole job requires close collaboration and mutual confidence between the representative and those controlling the union and it is plain that in these respects the present executive is entitled to decide that Mr Rutherford is more suitable than Mr Loty." 355 The Commission has had regard to the alternate arguments launched by Mr Moorhouse, referring as he asked me to do to caselaw, especially Perkins Vs Grace Worldwide (Australia) Pty Limited (1997) 72 IR 186, where the important logic was applied of normally being able to overcome difficulties, often of the employer's own making, in the restoration of work relationships. The decision of the Full Bench of this Commission in Youssef and Western Sydney Area Health Service in Matter No IRC 1097 of 2002 was also amongst the cases in the area of practicality of reinstatement and whilst that decision and others referred to by Mr Moorhouse offer good reasons for putting aside the predictable objections of employers to reinstatement, the case at hand throws up distinguishing factors. 356 In this case the Commission has been less than confident in the practicality of restoring Mr Veney to his place in the union without undue risk. 357 Accordingly, monetary compensation is appropriate and this should reflect the factors earlier stated pertaining to what might be colloquially called the contributory negligence of the applicant in his own dismissal and going to the degree of unfairness, which, apart from being consistent with the need to measure what compensation is due, is also in line with Section 88 Subsection (f), which requires the Commission to take into account, "such other matters as the Commission considers relevant". 358 The Commission has noted the details of Mr Veney's remuneration package outlined in Mr Moorhouse's final submissions, along with the brief reply by Ms Nomchong to the effect that the Commission has no jurisdiction to make an order under Section 89(6) in the absence of proper evidence as to all aspects of his remuneration. 359 In fact, there is really only insufficient evidence of the benefit to him in respect to the private use of the motor vehicle issued to him, which was apparently a Ford Falcon and Mr Moorhouse asked the Commission to adopt a figure of $3,000 p.a. as a conservative estimate of the value of the benefit to him, and taking account of the fact that he had the use of the vehicle to and from his place of work. 360 I have been concerned to ensure that a just level of remuneration is applied to the Orders I make under Section 89(6), especially given the time and cost involved in the pursuit of evidence in respect of a broad range of topics throughout this case. I have therefore traversed several of the cases as to the calculation of remuneration, beginning with the one referred to me on the point by Mr Moorhouse of Fightvision Pty Ltd Vs. Onisforou and others; Tszyu Vs Fightvision Pty Ltd and Another [1999] NSW CA 323 which held, inter alia: "In the assessment of contractual and tortuous damages based on future hypothetical events, there should not be a finding on the balance of probabilities leading to those events being treated as certain. However, to say that it is more probable than not that something less than that for which the plaintiff contends would have occurred may be a way of allowing for improbables, and therefore be permissible." 361 The assessment of the private use component in the decisions of both the Federal and State Commissions has not infrequently required estimations not founded upon strict record keeping, with the decision given on the basis that the Commission is competent to adopt such figures. The estimate of 10% with a resulting weekly figure of $58 is considered safe and when added to his base rate of $1,162 p.w., plus 9% employer contribution to superannuation, which is $105 p.w. confirms $1,325 p.w. as the fairest basis for orders by the Commission, as claimed by Mr Moorhouse. 41 It is apparent that Murphy C made no reference to the claims or evidence advanced in relation to sick leave, in his assessment of what compensation should be granted. It follows, at best, that they were matters relied on by Mr Veney, to demonstrate the unfairness of his dismissal. 42 In these proceedings, the summons seeks orders in relation to sick leave:

(2) An order that the Contract be varied in the following respects from its commencement or from such other times as the Court considers just in the circumstances of the case: (c) The Respondent shall, in addition to any required period of notice or payment in lieu thereof, pay to the Applicant the amount in respect of accumulated sick leave which he would have received if he had resigned or retired at the date of termination. 43 Part B of the summons deals with sick leave in this way:

5. It was a term of the Applicant's employment that on completion of at least 10 years' continuous service, on resignation or retirement he would be paid any accumulated sick leave on the basis of up to 2 weeks' for every completed year of service. 18. If the Applicant had resigned from his employment at the time of his termination he would have received a payment of approximately $41,815, representing two weeks sick leave for every year of service (being 2 weeks x 18 years of service) multiplied by his base salary. The Applicant was paid out his accrued sick leave at the time of leaving his employment with Wollongong City Council, and accordingly does not seek to have that service counted towards his total period of service for the purpose of determining his entitlement to payment of accrued sick leave. 30. The Applicant's employment contract with the Union was or became unfair, harsh or unconscionable, and/or against the public interest, because:

... (c) it permitted the Union to terminate the Applicant's employment on notice but in a manner which deprived the Applicant of the entitlement which he had to receive a substantial payment in respect of his accumulated sick leave on resignation or retirement;

44 It is apparent that the s 84 proceedings did not concern the fairness of Mr Veney's contract in relation to sick leave. His complaint here is that in the event of dismissal on notice, he has no contractual right to be paid out his untaken sick leave. That is, undoubtedly, not a matter which Mr Veney could have agitated in the s 84 proceedings and so is not precluded from being advanced in these proceedings by s 109A. As Kirby J observed in Walker v Industrial Court (NSW) (1994) 53 IR 121 at 134 -135:

... The existence of other remedies (such as statutory claims for redundancy payments, statutory claims for reinstatement for wrongful dismissal, or a common law claim for unjust dismissal) do not control or limit the very large language of s 88F(1).

It is by no means unusual in our legal system for the one set of circumstances to give rise to a number of remedies which the person affected may pursue, sometimes in the one court, sometimes in differing courts, to the full extent of that person's entitlement. ... The ingredients of the various entitlements may be different. But the existence of alternatives has never excluded a person from pursuing rights expressly conferred by statute. Unless those rights are expressly, or by necessary implication, excluded by the alternative claim, or controlled an obligation to elect or by time limits, the beneficiary of the statutory right can pursue any, or all, or no entitlements. 45 While s 109A must be given its proper effect, the fact that the consequences of a dismissal are relied upon to demonstrate its unfairness, cannot preclude proceedings being brought under s 106 of the Act, in relation to those consequences and the unfairness of the contract which permits them unless, as the section requires, it may be concluded that the application sought to be made in the s 106 proceedings, could have been made in the s 84 proceedings. Plainly the claim here made in relation to sick leave, could not.

Notice of termination 46 The same conclusion must follow in relation to the notice claim here advanced. Mr Veney had a contractual entitlement to five weeks' notice of termination, which he received. This was undoubtedly referred to in the s 84 proceedings, where Mr Veney complained about the consequences of such notice, given his long years of service with the Union and the difficulty he would confront in obtaining other employment, given that background, his age and so on. He also led evidence in relation to the efforts which he made to find alternative work. That was a relevant issue, given the provisions of s 89(6) of the Act. Such issues will also undoubtedly be relevant in these proceedings, if Mr Veney's claims succeed to the point where money orders are contemplated, given the provisions of s 106(6). 47 In Part A of the summons, Mr Veney seeks an order that:

(a) where the Contract is terminated by the Respondent, other than for serious misconduct, the Respondent shall give the Applicant 9 months' written notice or pay the Applicant and amount in lieu thereof. Any such payment in lieu shall be calculated on the basis of the value of the Applicant's full remuneration package at the time of termination.

48 In Part B, the orders are supported by what is said at:

9. There was no express term of the Applicant's employment governing the period of notice of termination required to be given by the Union to the Applicant.

14. The termination of the Applicant's employment by the Union was not for serious misconduct and the Applicant received five (5) weeks pay in lieu of notice.

15. On or about 28 September 2006 the applicant was paid his accrued annual leave and long service leave entitlements. On 16 October 2006, almost one month after the date of his termination, the Applicant received a further payment from the Union of $3,980. The Applicant understands this amount as being five weeks' net pay in lieu of notice, although he has not received any payslip or other document from the Union confirming the nature of this payment. The Applicant did not receive any payment on termination in respect of his accumulated sick leave entitlement. The Applicant did not receive any severance payment on termination. 30. The Applicant's employment contract with the Union was or became unfair, harsh or unconscionable, and/or against the public interest, because: (a) it failed to provide for an adequate or fair period of notice of termination, or payment in lieu thereof, in the circumstances of the employment and the termination of the employment;

49 In evidence, in the s 84 proceedings, was Mr Veney's contract of employment. On termination he was given five weeks' notice. Murphy C did not refer to this, in the conclusions which he reached in relation to the fairness of the dismissal, or the compensation which should be ordered. He certainly did refer to Mr Veney's 'age and background as a union official over eighteen years', which he had identified as having been taken into account (at [349]). 50 I am satisfied, however, that the conclusion reached as to the compensation which should be ordered, in respect of the dismissal found to have been unfair in the s 84 proceedings, cannot lead to the result contended for by the respondent. Neither s 109A, nor questions of estoppel can lead to the conclusion that Mr Veney is not free to challenge the fairness of his contractual notice period. 51 That was the conclusion reached in Beahan and RiceGrowers. While in Balsdon, Boland J concluded that the challenge to the contractual notice period was caught by s 109A, that was a very different case to this one. There his Honour concluded that, in truth, what was being attacked was the fairness of the decision to dismiss. That is not what this notice claim is concerned with. That question has already been decided in the s 84 proceedings. What is here challenged is the fairness of the contractual requirement as to the period of notice required to be given, to bring the employment to an end. That is a different question to the fairness of the decision to give such notice.

Superannuation 52 For similar reasons, the same conclusion must follow in relation to superannuation. The summons seeks no order in relation to superannuation. In Part B, reference is made to Mr Veney's employment entitlements:

10. As a result of the Applicant's employment and his prior employment with Wollongong City Council the Applicant was a member of the Local Government Superannuation Scheme ("the Scheme"). The Applicant commenced with the Scheme on approximately 1 December 1974.

11. The Scheme included a defined benefit retirement scheme. That retirement scheme provided the Applicant with an entitlement to a benefit upon retirement calculated on the basis of the Applicant's final average salary and his 'accrued benefit points'. 'Accrued benefit points' are determined by the level of contributions made by the Applicant to the Scheme over the period of his employment The Applicant would have been able to access the defined benefit retirement scheme at any time after the Scheme's early retirement age of 58.

12. At the time of his termination the Applicant was contributing to the Scheme at the maximum rate of 9% of his salary in order to accrue the maximum 'accrued benefit points' for the purposes of the Scheme in advance of his retirement. The Applicant's intention was to continue contributing to the Scheme at the maximum rate in order to maximise his retirement benefit from the Scheme upon retirement.

20. As a result of the termination of the employment the Applicant has been credited with a 'deferred benefit' under the rule of the Scheme. That benefit is calculated on a basis which is less favourable to the Applicant that the retirement benefit to which he would have become entitled upon retirement. Further, the termination of the employment has prevented the Applicant from accruing further 'accrued benefit points' so as to maximise the retirement benefit to which he would have been entitled under the Scheme.

21. The termination of the employment has prevented the Applicant from obtaining his expected retirement payment under the Scheme, and resulted in a significant reduction in the benefit to which he is entitled under the Scheme.

30. The Applicant's employment contract with the Union was or became unfair, harsh or unconscionable, and/or against the public interest, because: (a) it failed to provide for an adequate or fair period of notice of termination, or payment in lieu thereof, in the circumstances of the employment and the termination of the employment; (b) it permitted the Union to terminate the Applicant's employment in circumstances where the Applicant's position was surplus to the Respondent's operational needs without requiring the Union to acknowledge that the position was surplus to requirements or make the payments required to be made to employees whose position is declared redundant;

(c) it permitted the Union to terminate the Applicant's employment on notice but in a manner which deprived the Applicant of the entitlement which he had to receive a substantial payment in respect of his accumulated sick leave on resignation or retirement;

(d) it permitted the Union to deprive the Applicant of the benefits of his long-term and secure employment with the Union without providing the Applicant with any or sufficient compensation;

(e) it permitted the Union to pay to the Applicant compensation on termination of employment which was significantly less than the compensation provided to other employees removed from employment at around the same time;

(f) it permitted the Union to pay to the Applicant compensation on termination of employment which was significantly less than the amount which the Union would generally require or seek in relation to its other members;

(g) it failed to require the Union to represent or otherwise assist the Applicant in industrial proceedings relating to his employment; and

(h) it failed to contain the terms set out in proposed Order 2.

53 Nor are there money orders sought in relation to superannuation in Part D of the summons. It is not entirely clear from the summons as to why these matters going to superannuation are raised in Part B, other than perhaps inferentially as being relevant to other claims, such as, for example, the notice claim. 54 Certainly superannuation was relied on in the s 84 proceedings. The Commissioner referred to it as a matter which he took into account in coming to a conclusion as to what compensation should be ordered. 55 Given that there are seemingly no orders sought in these proceedings in relation to superannuation, it cannot be concluded that s 109A arises for consideration, or that any question of issue or Anshun estoppel can arise. It may be that as the case unfolds some different view is available to be taken, given the relief Mr Veney actually seeks. At this stage, however, I can see no basis for the orders which the respondent seeks, in this respect.

Legal costs 56 In the s 84 proceedings, Mr Veney seeks an order for costs in his favour, as does the respondent. In these proceedings, Part A of the summons shows that he seeks an order that: (2) An order that the Contract be varied in the following respects from its commencement or from such other times as the Court considers just in the circumstances of the case:

(d) If the Respondent refuses to provide services, as provided to other members of the union relating to representation in industrial matters, then the respondent shall reimburse the Applicant for any legal costs incurred in obtaining any legal representation.

57 In Part B, the matters of fact and law relied upon to support this claim, are:

8. It was a term of the Applicant's employment that he must be a member of the Union and would be afforded all services afforded to the membership of the Union.

29. Following the threatened dismissal of the Applicant, and prior to the termination of the Applicant's employment, unfair dismissal proceedings were commenced in the Commission. That matter has been heard and the decision reserved at the date of filing. The Union did not represent the Applicant in those proceedings nor did it offer to do so. To date the Applicant has incurred $171,898.30 in legal fees contesting the unfair dismissal proceedings.

30. The Applicant's employment contract with the Union was or became unfair, harsh or unconscionable, and/or against the public interest, because: (g) it failed to require the Union to represent or otherwise assist the Applicant in industrial proceedings relating to his employment;

58 Money orders of some $171,898.30 are sought in Part D of the summons. The money orders being pursued in the s 84 proceedings are somewhat greater. The respondent argued that Mr Veney had to elect in which forum he wished to pursue a claim for the costs of the s 84 proceedings. Further, for reasons of comity, such orders would not be made in these proceedings. 59 I am unable to accept the respondent's arguments. The s 84 proceedings have been litigated. If, in accordance with s 181, the Commissioner comes to the view that the respondent or Mr Veney 'unreasonably failed to agree to a settlement of the claim' or their position in the proceedings was 'frivolous or vexatious', they are entitled to a costs order in their favour, under the statutory scheme. 60 In these proceedings, Mr Veney claims his contract was unfair, because, despite being entitled to the same conditions as other Union members, the respondent failed to arrange for his representation in the s 84 proceedings and otherwise refused to meet the costs of his representation. This is plainly not an application which Mr Veney could have made in the s 84 proceedings. Nor does any kind of estoppel arise in relation to this claim. 61 While the views expressed by Rothman J in Russell v The Trustees of the Roman Catholic Church for the Archdiocese of Sydney & Anor (2007) NSWLR 198 and that of the Full Bench in Green v Brown (2002) 116 IR 21, might be relied on to resist the claim advanced by Mr Veney, I am satisfied that this is not the appropriate time for the question raised by the respondent, to be determined in these proceedings, given what was said in Nagle. Orders 62 For the reasons given, I order that the orders sought in relation to redundancy pay in paragraphs A2(b) and D(a) of the summons, supported by the matters of fact and law appearing at paragraphs B9, 13 to 15 and 30(a) of the summons, be set aside. Otherwise, the orders sought in the motion are refused. 63 The usual order as to costs is that they should follow the event. In the absence of agreement the parties have liberty to approach as to costs, that liberty is to be exercised within 14 days.

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