Bradley Stokes v Southcorp Wines Pty Ltd

[2008] VMC 4

IN THE MAGISTRATES COURT OF VICTORIA

AT MELBOURNE

INDUSTRIAL DIVISION

Case No. W00824196

BRADLEY STOKES	Plaintiff
v
SOUTHCORP WINES PTY LTD	Defendant
(ACN 000 009 763)

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MAGISTRATE:	K. HAWKINS
WHERE HELD:	MELBOURNE
DATE OF HEARING:
DATE OF DECISION:	16 APRIL 2008
CASE MAY BE CITED AS:	BRADLEY STOKES v SOUTHCORP WINES PTY LTD (ACN 000 009 763)
REASONS FOR DECISION

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Catchwords: Repudiation of a contract, termination of the contract, entitlement to notice.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff
For the Defendant  HER HONOUR:
The Claim

1.  The plaintiff claims his former employer, Southcorp Wines Pty Ltd, breached his contract of employment. His first claim is for pay in lieu of notice, in the sum of $6,887. His second claim is for a redundancy entitlement in the sum of $20,662. Mr Stokes argues that following the takeover of Southcorp Wines Pty Ltd by Fosters, his position no longer existed. He submits that the new position offered by Fosters was substantially different, and the conditions less favourable. Fosters management refused to acknowledge that his position was redundant. Mr Stokes elected to treat the contract with Southcorp as at an end and bring these proceedings.

Background

2.  Bradley Stokes is an IT professional. Formally, Southcorp Wines engaged him as a desktop support specialist. This role involved answering queries over the phone, and travelling to various locations to fix problems and roll out new software and hardware. Occasionally he also dealt with IT issues arising on the production line, but this was not his area of responsibility. This job “was the best I have ever had”. It was highly personal. He looked after computer systems at many delightful vineyards in rural Victoria. He enjoyed the benefit of a “wine allowance” which also permitted him to purchase the company’s products at discount rates. The role was highly autonomous. The pay was good and the other conditions generous. Southcorp permitted personal use of the company vehicle, including travelling to Queensland on holidays. Southcorp recognised and rewarded Mr Stokes successful performance.

3.  In March 2004, Mr Stokes started at the company’s Nunawading site. After 3-4 months, he took up a new position at the Great Western site in rural Victoria. He moved to Ballarat with his wife and young child. In this position he was required to attend approximately 11 other vineyards in Victoria and South Australia.

4.  Meanwhile Southcorp closed the Nunawading site in May 2005 and moved the operations five minutes down the road to Burwood East.

5.  On 8 April 2005 Mr Stokes received a letter dealing with his relocation to East Burwood:

“Dear Brad

Further to our recent discussions, I am pleased to offer you permanent employment in the position of Desktop Support Specialist, reporting to the Desktop Support and Service Desk Manager commence (sic) on 12 April 2005 with Southcorp Wines Pty Ltd.

You will be located at our offices at 303 Burwood Hwy, East Burwood, Victoria.

This contract supersedes all prior written contracts between yourself and Southcorp. No changes, amendments, or modification of any of the terms or conditions of this contract shall be valid unless in writing and signed by both parties.

The terms and conditions of your employment are as follows:

RESPONSIBILITIES OF THE POSITION

Key requirements of your position are as discussed at the interview and in accordance with the attached position description. During the course of your employment, changes may be made to your terms and conditions, duties, position description and the existing reporting structure. These changes will be made in consultation with you taking account of your skills, experience and performance.

REMUNERATION

Your gross salary on commencement will be $57,000 per annum, paid directly into your nominated bank or related account on, or about, the 15th day of each month.

The Company has a performance based remuneration policy under which your salary is subject to an annual review on 1 July each year and your next review will occur on 1 July 2005.

Your remuneration package is to remain confidential.

Wine Allowance

As an employee of the company, you will be expected to promote the Company’s products at every possible opportunity. For this purpose and in order to gain a better understanding of the company’s products, you will be provided with an annual allowance of $900 per annum credited to your house account for the purpose of purchasing wine at staff prices.

The specific terms and conditions associated with your house account are set out in the Wine Policy located on the intranet site or ask your manager for a copy.

Superannuation

(…)

MOTOR VEHICLE – JOB REQUIREMENT VEHICLE

In order for you to undertake your duties, you will be provided with a fully maintained “job requirement” vehicle, the make and model of which is determined by the Company.

Vehicle use, driver responsibility, service and maintenance are in accordance with
Southcorp’s Motor Vehicle Policy on the Intranet or ask your manager for a copy.

MOBILE TELEPHONE

As you will routinely need to be contacted outside of standard business hours, you will be provided with a Company mobile telephone. Please refer to the Mobile Phone Policy located on the Intranet for guidelines on its use.

HOURS OF WORK

As a salaried employee, you are remunerated for the performance of your role and there is an expectation that you may be required to work outside of normal business hours on occasions.

LEAVE

Annual Leave

You will be entitled to 4 weeks paid Annual Leave for each period of 12 months continuous service.

The specific terms and conditions associated with annual leave are set out in the
Annual Leave Policy located on the intranet site or ask your manager for a copy.

Long Service Leave

(…)

Sick Leave

(…)

Other Leave

There are other leave provisions to which you may be entitled. These are set out in the Southcorp Leave Policies located on the Intranet or ask your manager for a copy.

INTOXICATING LIQUOR AND DRUGS

(…)

NO SMOKING POLICY

(…)

EXPENSES, INDUCEMENTS AND RECORD KEEPING

(…) Please refer to the Business Travel Policy which is located on the intranet for
further information.

You will also abide by the terms of any Southcorp policies concerning levels of expenditure, including entertainment and the giving and receiving of gifts. In this regard, you agree that you will not accept any payment or other benefit in money or kind from any person as an inducement or reward for any act or forbearance in connection with any matter or business transacted on or on behalf of Southcorp. Please refer to the Southcorp Travel Policy which is located on the intranet.

(…)

INFORMATION SECURITY POLICY

(…) You are therefore required to abide by Southcorp’s Information Security Policy
located on the intranet or ask your manager for a copy

CONFIDENTIAL INFORMATION AND SOUTHCORP’S PROPERTY

(…)

TERMINATION OF EMPLOYMENT

(…)

2. You may terminate your employment by giving the Company not less than one month’s written notice. (…)

Your employment may be terminated by the Company giving to your without cause, not less than one months notice in writing or paying you one months base salary in lieu of notice.

AMENDMENT

This letter forms the basis of the terms and condition of your employment with Southcorp and should be kept confidential. Any amendment to the terms and conditions will be in writing, signed by both you and Southcorp.

PRIVACY

(…)

COMPANY POLICIES

During the term of your appointment, you will be bound by Southcorp policies and procedures, and conditions including any variation that may occur from time (sic) and any new policies that may be introduced during your employment. A copy of these policies can be located on Southcorp’s intranet or ask you manager for a copy.

CODE OF CONDUCT

(…)

ACCEPTANCE

It is a condition of your employment that you maintain confidentiality with respect to your condition of employment, as contained in this contract, and any subsequent variation there to.

Please acknowledge you understanding and acceptance of the terms and conditions of this Contract of Employment by signing the copy and returning it to me.

(…)

Yours sincerely,

SOUTHCORP

Katie Dwyer

Desktop Support and Service Desk Manager

Attachments

Duplicate Contract of Employment

Position Description

ATTACHMENT A- Relocation entitlements

(…)

6.  Certain matters were subsequently clarified by letter dated 11 April 2005 from his superior, Katie Dwyer. Relevantly this letter provided:

“Dear Brad

Further to our recent discussions regarding additional clarification on the terms and conditions outlined in your employment agreement dated 8 April 2005, I am pleased to confirm with you the following arrangements regarding permanent employment in the position of Desktop Support Specialist, reporting to Desktop Support and Service Desk Manager commencing on 12 April 2005 with Southcorp Wines Pty Ltd.

MERGED POSITIONS

The merging of the two Desktop Support Specialist positions based at Burwood East and Great Western Victoria results in a total remuneration increase that reflects and acknowledges your additional job responsibilities, support sites and travel requirements.

This new position is outlined in the offered employment agreement dated 8 April
2005 with a performance based remuneration review 1 July 2005.

SUPPORT SITES

You will continue to support your current sites as outlined below in addition to our offices at Burwood East and Coldstream Hills Victoria.

Current Sites:  Great Western Victoria, Glenlofty Victoria, Heathcote (Corop) Victoria, Drumborg Victoria, Barooga New South Wales, Coonawarra South Australia, Padthaway South Australia, Bordertown South Australia and Robe South Australia.

Your primary support site and employment location is at our offices at Burwood East Victoria. You will be responsible for the local and remote support of all the above-mentioned offices.

HOURS OF WORK

Your business hours of work will be from 7:30am to 4:00pm to cover support will be compensated with time in lieu.

requirements of remote sites.

MOTOR VEHICLE

You will continue to retain your fully maintained job required vehicle as previously arranged in your current employment agreement dated 16 June 2004. Based on your job requirements and support for remote sites, this is a position allocated car and will continue to be recognised as part of your total remuneration.

We recognised that the allocation and ongoing personal use of this motor vehicle is based on your current employment position in which your job responsibilities were significantly altered from a two site, to a nine site support position. This arrangement will remain unaltered in the offered employment agreement dated 8 April 2005.

TRAVEL ARRANGEMENTS

In light of your outstanding accomplishments over the last year we anticipate any additional travel requirements to perform your increased duties will have a minimal personal impact. As previously discussed, I would encourage you to take your family with you wherever possible.

You will continue to retain your corporate American Express car for travel requirements.

Yours sincerely,

SOUTHCORP

Katie Dwyer
Desktop Support and Service Desk Manager”

7.  Mr Stokes ultimately signed and returned this contract to Southcorp. He commenced work at the East Burwood site, providing desktop support for the sales staff based there together with his winery duties. I am satisfied that the letters dated 8 and 11 April 2005 form the basis of the contract of employment between the parties.

8.  Mr Stokes was not shown the policies referred to in the contract. He did not ask his manager for a copy, or look them up on the intranet.

9.  On 22 June 2005, Katie Dwyer conducted an annual review of Mr Stokes’ performance. In all of the 10 Role Accountabilities, Ms Dwyer assessed his performance as exceeding expectations.

10. Southcorp was taken over by the Fosters Group in mid 2005.

11.The takeover delayed the outcome of the salary review. Ian Farnsworth, Chief Information Officer of Fosters, advised Stokes by letter dated 6 September 2005 that Southcorp salaries would be brought into line with Fosters remuneration. As Mr Stokes was at the top end of the maximum remuneration for his role, he would not be eligible for a salary increase. His performance was instead recognised by a lump sum payment of $2,521.

12.Mr Stokes was aggrieved by this outcome and confirmed that Ms Dwyer had recommended he receive the maximum allowable salary increase of 4%.

13.Between June and August 2005 Mr Shaun Perrett, the then Technical Services Manager within Fosters conducted a review of the roles of Southcorp employees for the purposes of integration. This involved `job matching’ between positions within Fosters and positions at Southcorp, and determining which Southcorp employees could be effectively integrated into the Fosters structure. Fosters staff, and not Southcorp employees conducted this exercise.

14.By comparing position descriptions and utilising a “Mapping Compatibility Checklist” Mr Perrett determined that there was an approximate 80% match between the roles at Fosters and Southcorp. He noted however that by the time he conducted this exercise, Fosters had outsourced much of the activity of the role to an independent contractor, Commander.

15.Mr Perrettt explained that the 20% difference was due to the more repetitive work being outsourced by Fosters. Whilst the work performed at various sites was subtly different, financial criteria, people responsibility, geographic responsibility and decision making criteria were assessed as direct matches.

16.Mr Perrettt then assessed how many employees he would require for the role. He also considered that it was desirable that any potential employee be prepared to move interstate. In June to August 2007, he set about meeting generally with all Fosters Consultants and Southcorp Specialist to explain the process. Mr Stokes indicated he was happy to relocate interstate if required.

17.Mr Perrettt identified a `resource match’ in Victoria and offered Mr Stokes a direct appointment in the new integrated Fosters structure. Other surplus staff were offered redundancies.

18.From approximately September 2005 onwards, Mr Stokes began performing the new Field Services Consultant role within the new integrated Fosters structure. He began reporting to a Mr Cowper, and ultimately to Mr Perrett. He however remained a Southcorp employee.

19.Mr Stokes was tasked with the project of upgrading all his Southcorp sites to the Fosters operating platform. This involved extensive travelling. These sites were then handed over to Fosters external contractor, `Commander’ to support. He was no longer required to directly support these sites.

20.By March 2006 the need for Mr Stokes to support, his previous sites largely diminished. His Southcorp chain of command had been made redundant. He felt he was left with little work to do. The support calls he previously took had been outsourced to Commander.

21.The East Burwood site was closed at the end of March 2006 and all remaining staff moved to other locations. Mr Stokes was directed to work at the Abbotsford site. His role there was to take calls from the Fosters service desk, which could not be solved by the external contractors. He was to deal with those calls on a `cab rank’ basis. Occasionally he would be required to travel to a site. He would be entitled to use a pool car or a taxi for transport, but not to take home each day, nor to use for personal travel. His role was essentially fixed at the Abbotsford site with no responsibility for particular wineries or sites.

22.By letter dated 5 October 2005 Mr Stokes was offered employment with Foster’s People Pty Ltd as a Field Support Consultant (Vic). This contract stated “The basic

principle underpinning this offer is that your Total Remuneration and general terms and conditions of employment have be recast to reflect your employment by Foster’s People upon your acceptance of this offer.”

23.An incomplete document titled “Terms and Conditions of Employment” was attached. It contained incomprehensible targets in order to qualify for an incentive plan. These were subsequently clarified. Many significant entitlements were omitted, including provision for hours of work; annual leave; sick leave; no access to grievance procedures; no annual performance review; no entitlement to pay in lieu of notice or severance pay. Most notably, it did not include a specific `job requirement” vehicle. He was advised he would instead have access to a `pool’ vehicle if required, or be reimbursed for a taxi. Under cross-examination, Mr Perrett agreed that the Fosters contract omitting these entitlements present in Mr Stoke’s Southcorp contract was significantly inferior.

24.Mr Stokes communicated his concern that the offered contract was inferior to his existing terms and conditions. The new contract did not include a wine allowance, or provision of a car, and the geographical location was much further from home. Fosters did not improve the offer to the satisfaction of Mr Stokes.

25.In mid March 2006, Stokes was asked to relocate to Fosters Abbotsford Brewery site. He was told he would lose his car once the present lease expired in December 2006. He alleges that he was told that if he did not agree to resign from Southcorp and sign a Fosters contract he would be “hounded until he did”. He further alleges that if he chose to stay as an employee of Southcorp he would not receive a further salary review.

26.From 3 April 2006, the East Burwood site was closed. Mr Perrett agreed that Stokes had no work to do there after that date.

27.On 3 April 2006, Mr Stokes did not attend work. His solicitors forwarded a letter to Mr Brendan Richardson of Fosters Human Resources asserting that he had been made redundant and his employment terminated. It sought the payment of benefits accordingly.

28.Fosters had an ongoing need for the duties Mr Stokes had been performing to be done. It acted immediately to outsource his duties to Commander and an independent contractor. It did not employ a staff member to fill his position.

29.Chris Ramage, Human Resources Manager for packaging and wineries at Fosters gave evidence. He has worked for Southcorp as an HR manager since March 2003. He was familiar with terms and conditions of employment at Southcorp.

30.Startlingly Mr Ramage asserted that Southcorp had no HR policies. He agreed the Southcorp contract binding Mr Stokes was in the `standard form’, consistent with those generally offered to salaried employees. He agreed the Southcorp policy and procedure manual tendered to the Court however was from an `old’ Southcorp policies and procedures manual. He was unable to confirm whether the policies referred to in Mr Stokes contract were ever removed from the intranet. He agreed that in 2005 the policy manual was available in hard form in Southcorp offices. However, remarkably he claimed that an employee could not obtain a copy because

“the head of HR had at that stage rescinded those policies”.

31.Current Fosters IR Manager, Brendan Richardson gave evidence that his understanding was also that Southcorp had no HR policies.

32.Mr Ramage was clearly under pressure to present the Company line. He was nervous in doing so. Accordingly his evidence was a remarkable demonstration of “doublespeak”. Ultimately he did agree that in 2005 the policy manual was available in hard form in Southcorp offices.

Submissions

33.I have read and digested the extensive submissions of both parties, the relevant case law to which I have been referred to in the context of the evidence given to the court.

Witnesses

34.The Plaintiff was a considered and credible witness. By contrast, the witnesses for the Defendant appeared rehearsed and well seasoned by lengthy careers in management and industrial relations. Memory lapses and a forceful style was a feature of the evidence given by the Manager for Industrial Relations, Mr Brendan Richardson. Mr Perrett from Fosters gave evidence of decisions made based upon hearsay information, Mr Ramage, a previous Southcorp employee, and now one of “Fosters People” presented as very nervous, and was not able to shed much light upon the circumstances of Mr Stokes' employment conditions. To his credit when he advanced the incredulous company line of “there are no policies”, he directly answered questions from Mr Gunst QC that he had never seen anything in writing cancelling those former policies.

35.The force of the Defendant’s case was diminished considerably by persistence of “no policies defence” in light of clear evidence to the contrary. However clearly the plaintiff bears the onus of proving his case on the balance of probabilities.

Some General Principles

36.It is well-settled that the interpretation of a contract is an objective exercise, not a subjective one:[1]. In Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd at [40] the Court said:

[1] Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165, Maggbury Pty Ltd v Hafele Australia Pty Ltd

“It is not the subjective beliefs or understandings of the parties about their rights and liabilities that govern their contractual relations. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe. References to the common intention of the parties to a contract are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement. The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean. That, normally, requires consideration not only of the text, but also of the surrounding circumstances known to the parties, and the purpose and object of

the transaction.” [Emphasis added]

37.If more than one meaning can be attributed to the words of a contract, the reasonable construction will be preferred to the unreasonable, absurd or capricious

2.

38.Thus, it is for the Court to determine, objectively, not what a party might say it believed the contract meant or provided for, but the presumed common intention of the parties as to meaning of the words of any phrase in the contract, against the factual background of contracting parties, preferring a reasonable interpretation to an unreasonable one.

39.A document (such as a company policy containing promissory representations about payment on redundancy) will only be imported into a contract by reference, and thus will form part of the contract, where the document exists, and where the contract refers to it and stipulates that it has binding effect: [3]

[3] Riverwood International Australia Pty Ltd v McCormick (2000) 177 ALR 193 per Lindgren, North and

40.Repudiation of a contract (which, if accepted, entitles the innocent party to sue for damages) occurs where a party evinces an intention not to be bound by a contract: In Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd Brennan J stated [4]:

[4] at 647 (1989) 166 CLR 623 at 641-642 and 647 per Brennan J and at 657-658 per Deane and Dawson JJ.

“Repudiation is not ascertained by an inquiry into the subjective state of mind of the party in default; it is to be found in the conduct, whether verbal or other, of the party in default which conveys to the other party the defaulting party's inability to perform the contract or promise or his intention not to perform it or to fulfil it only in a manner substantially inconsistent with his obligations and not in any other way.”

41. And at 657-8 Deane and Dawson JJ said:

“An issue of repudiation turns upon objective acts and omissions and not upon uncommunicated intention….It suffices that, viewed objectively, the conduct of the relevant party has been such as to convey to a reasonable person, in the situation of the other party, repudiation or disavowal either of the contract as a whole or of a fundamental obligation under it.”

42.Redundancy occurs when a particular position is no longer required. The classic definition of redundancy is set out by Bray CJ in The Queen v Industrial Commission of South Australia; ex parte Adelaide Milk Supply Co-operative Limited[5]

[5] (1977) 16 SASR 6 at 8

"A dismissal for redundancy seems to be a dismissal, not on account of any personal act or default of the employee dismissed or any consideration peculiar to him but because the employer no longer wishes the job the employee has been doing to be done by anyone."

43.More recently, in Foster’s Group Ltd v Wing[6], the Court of Appeal (Habersberger AJA at [36], Maxwell P and Nettle JA agreeing at [1] and [2] respectively) said:

[6] (2005) 148 IR 224

“The critical question is whether through no fault of the employee his or her role no longer exists or the duties have so changed that for all practical purposes the original role no longer exists.”

Issues in this case
What were the terms of the contract of employment?

44.The express terms of the contract of employment are set out in the letters dated 8 and 11 April 2005. Whether a term may be implied giving rise to a right to receive a severance payment will be addressed below.

Work Location

45.Mr Stokes had a mobile career with Southcorp. He travelled thousands of kilometres a month. His employment history shows a variety of `home bases’ and distant destinations. His most recent contract discussed the merger of two positions at Great Western and Burwood East in Victoria, with responsibility for supporting distant sites in three states. His “primary support site and employment location” was to be at the company’s offices in Burwood East. That Mr Stokes would travel to locations as directed was a key feature of his employment with Southcorp. He was based at East Burwood, but he spent less than 50% of his time there. The primarily responsibilities of his role were to provide IT support to users of the Defendant’s computer systems, located at various sites throughout Victoria, and some in South Australia and New South Wales.

46.Mr Stokes submits that location was an express contractual term which was important to him, because it was close to home. As an express term governed the matter, he argues is not possible to imply a contrary term permitting transfer to Abbotsford.

47.The plaintiff contends that a mobility clause ought not to be implied into the contract. The Court was referred to the term considered by the Federal Court in ACSA v Queensland Mines Rescue Service [1999] FCA 395. Mr Stokes submits that term is indistinguishable from the present. In that case the employee was engaged under a contract that stated “you will be located to (sic) the suburb of Booval”. The employer closed that worksite and sought to transfer the employee to a new worksite. The employee claimed he was entitled to redundancy pay. Finding in favour of the employee, Cooper J said:

“[53]…Under the new contract he was employed to fulfill the duties attaching to the position of Station Superintendent at the Booval Mines Rescue Station. The place of his employment under the new contract was at the Booval Mines Rescue Station. It was not necessary to imply in this contract any term as to the place of employment in order to give the contract business efficacy. The new contract of employment did not contain an express mobility requirement which would permit compulsory transfer…..

“[54] In the absence of an express mobility requirement it was for the Defendant to make out the requirements for the implication of such a term:

O'Brien v Associated Fire Alarms Ltd [1968] 1 WLR 1916. In that regard it was

for it to establish that a mobility clause of the type contended for satisfied the

requirements for the implication of such a term: Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 422. These requirements are detailed in Codelfa Constructions Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 327 at 347 and BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180

CLR 266 at 283. In my view the Defendant cannot satisfy the test because on the material before the Industrial Magistrate it cannot be said that such a term is not inconsistent with the express terms of the contract which provided for employment at the Booval Mines Rescue Station. Nor can it be said that a mobility requirement is necessary to give business efficacy to the contract of employment for work at Booval. The employment contract is effective without it and in consequence no implication of a further term will be made. It is not

sufficient that such a requirement may be reasonable: Codelfa Constructions

at 346.”

48.Mr Stokes therefore contends that even if it is not an express term of the contract of employment that the employment be located at East Burwood, the onus is on the Defendant to establish that there was a mobility clause implied in the contract: O'Brien v Associated Fire Alarms Ltd [1968] 1 WLR 1916 and ACSA, op cit at [54]. For a term to be implied, the following conditions must be satisfied:

“(1) it must be reasonable and equitable; (2) it must be necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it; (3) it must be so obvious that "it goes without saying"; (4) it must be capable of clear expression; (5) it must not contradict any express term of the contract.”[7]

[7] Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 at 351-352,

49.He argues any proposed mobility clause would not meet such requirements because:

(a)	It would contradict an express term.
(b)	It would not be reasonable and equitable: it would work solely for the employer’s benefit.
(c)	It would not be necessary to give business efficacy to the contract. “Necessity” is such a high bar that in almost all cases it will not be met by the party seeking to imply the term. It is clearly not necessary in this case as the contract worked effectively for over 12 months without such a term needing to be utilised and, in the absence of the takeover, there is no reason that the contract could not have continued operating without such a clause.
(d)	It is not obvious: it is not sufficient that the term alleged is the most likely of a series of reasonable possible terms.[8]

[8] Mann v The Capital Territory Health Commission (1981) 54 FLR 23 at per Fox and Kelly JJ – “the existence

50.Mr Stokes concludes that the closure of the premises at 303 Burwood Highway was a breach of the express term of the contract. In the absence of a mobility clause, the attempt to transfer the plaintiff against his will to the Foster’s Abbotsford site was a breach of the contract.

51. The defendant made several submissions in relation to this as follows:

(i).	First, there was no contractual provision determining that Mr Stokes’ place of work was at any specific location. They submit on a proper construction, there was no term or condition of the contract that provided for a specific work location for the plaintiff. The `home base’ and its location was not a specific contractual requirement. This is consistent with the nature of his role and his responsibilities.
(ii).	Second, even if work location did form part of the contract, the Defendant was entitled to vary that work location at it saw fit. The Defendant reserved to itself the right to vary the “terms and conditions, duties, position description and existing reporting structure”, in consultation with the employee, as it saw fit. This was done in this particular case regarding the Plaintiff’s work location. He was given at least one month’s notice of the relocation.
(iii).	Third, even if the Defendant was not entitled to make that variation, the location of the Plaintiff’s employment was a mere warranty, not a condition entitling Mr Stokes to rescind contract for breach; and
(iv).	Fourth, even if it was a condition, Mr Stokes was provided with one months notice of the change of location, in compliance with the Defendant’s obligations under the notice provisions of the contract.

52.I conclude that work location did form an express term of the contract. However it was a term that the defendant reserved the right to vary on notice as it saw fit. Unlike the situation in ACSA v Queensland Mines Rescue Service this is consistent with the history of the employment, and the nature of the duties of Mr Stokes. From time to time his `home base’ did alter on notice. Mr Stokes was given notice in “mid March” that he would be required to relocate to Abbotsford on 3 April. This was only two weeks notice, rather than the month required in the contract. I conclude that the defendant did breach the contract by failing to give the required notice pursuant to the contract.

Entitlement to a motor vehicle?

53.Mr Stokes alleges that he had a contractually enforceable entitlement to a motor vehicle. He argues that the defendant’s notification to him that from January 2007, that vehicle would no longer be available to the plaintiff, was a breach of contract. The plain and unequivocal words of the contract indicate that the motor vehicle which the plaintiff had possession of was a “job requirement” vehicle.

54.Mr Ramage gave evidence about the Defendant’s distinction between “job requirement” and “benefit” vehicles. The plaintiff admitted that he knew of this distinction. He accepted that he knew that he had a “job requirement” vehicle.

55.The vehicle was provided by the defendant for the purposes of enabling Mr Stokes to perform his duties. The defendant no longer required the employee to travel as much, to adequately discharge those duties. Instead they made alternative arrangements for work transport. The vehicle in that context attaches to the position which the employee is performing, based on the duties that the employee is required to perform. The vehicle itself does not attach to the individual employee filling that position.

56.Mr Stokes points to the letter dated 11 April 2005 to give rise to this entitlement. The author of this letter was not called to give evidence, and on its face the contents do not compel such a construction.

57.I am satisfied that Mr Stokes did not have any additional personal contractual entitlement to a vehicle.

Provision concerning remuneration

58.The contract expressly provides the right to a salary review in accordance with the remuneration policy of the defendant: That policy provided:

“Monthly staff salaries are reviewed on July 1st each year to reflect cost of living movements. The annual salary review will also reflect the performance evaluation procedures.”

59.Mr Stokes received an exemplary performance review in 2005. His manager recommended the maximum allowable increase, of 4 %, which would have provided the plaintiff with an increase in his base salary of $2,280 per annum. He argues that in breach of the policy:

(a)	His salary was not reviewed to reflect either his performance evaluation or cost of living movements;
(b)	His employer refused to grant an increase only because of an irrelevant consideration, the perceived desirability of “parity between Southcorp and Foster’s colleagues”. This was a consideration not referred to in the contract or in the defendant’s remuneration policy:
(c)	His employer indicated that in the future he would not be eligible for future pay increases. A one-off ex gratia bonus such as the plaintiff received in September 2005 ($2,521) is not a substitute for an increase in base salary, which is an enduring benefit to an employee. Discretion whether to award a pay rise or bonus must not be exercised capriciously or on extraneous grounds.[9]

[9] : United Bank Ltd v Akhtar [1989] IRLR 507 EAT and Clark v Bet plc [1997] IRLR 348.

60.The defendant did not address this claim directly. Whilst Mr Stokes had a right to a salary review, his contract did not provide for a guaranteed increase in line with any recommendation. The plaintiff was given an annual right to negotiate, whether the employer granted any salary increase was a matter for their discretion.

Contracting out the job of the plaintiff

61. The contract of employment specifically defined the duties of the Plaintiff.

62.By early 2006 a significant proportion of the routine aspects of the Plaintiff’s job had been contracted out to a company, `Commander’. The remaining functions, largely consisted of servicing the East Burwood site (which was closed at the end of March 2006) and some of the smaller wineries (which were also in the process of being contracted out to Commander). The role with Foster’s, was similar to his previous role but largely undertaken from a call centre, with few travel possibilities, and little responsibility for particular sites. The plaintiff felt the ongoing role was by then a very unattractive and de-personalized one.

63.The plaintiff submits that he was not obliged to accept the proposed change in his duties. He argues: “The general rule is that a contract by which a person is employed

in a specific character is to be construed as obliging him to render, not indeed all service that may be thought reasonable, but such service only as properly appertains

to that character”[10]. The point is illustrated by Western v Union des Assurances De Paris (1996) 88 IR 259. In that case the employer unilaterally varied the responsibilities of the employee, even though the employee retained his former remuneration and title. Justice Magwick said:

[10] Commissioner for Government Transport v Royall (1966) 116 CLR 314 at 322, quoted in Macken et al, The

“The applicant perceived, and in my view correctly perceived, that there was a considerable change in the nature of the new position he was being offered…..He was thus offered new and different employment from what he had contracted for. He declined it, as was his contractual right. The respondent by its officers made clear that it would not continue to employ him to do his previously-contracted work. He was entitled to, and did, treat the contract of employment as breached in a fundamental way by the respondent and to regard it as terminated at the instance of the employer.”

64.The defendant argues tha the role Mr Stokes was performing in the new intergrated structure was largely the same as his former position.

65.For over six months from September 2005 to 3 April 2006 Mr Stokes performed the new role. The cases to which the Court was referred by the plaintiff are clearly good law. Mr Stokes did not have to accept the change; he could have treated the contract as breached in a fundamental way and regarded it as terminated by the employer. He did not do this until he had been effectively fulfilling the new role for the benefit of Fosters for over six months. True it is that he was still technically employed by Southcorp as he had not signed a new contract, but he was working as if he had. By the time he elected to treat the contract as at an end he had well and truly acquiesced to the change in his duties.

Wine allowance

66.The wine allowance was part of the remuneration of the plaintiff. It was important to him, and was worth approximately $1,800 per annum in real terms, because the wine was available at a much reduced “staff price”. The employer indicated that it would not be paying the wine allowance in the future but instead providing an allowance to purchase Fosters products. On the evidence I am satisfied that the alternative allowance was of equivalent worth.

Did the Defendant breach any term of its contract with Mr Stokes, and entitle him to accept the repudiation and terminate the contract?

67.I have concluded that the defendant did breach the contract by the changing the work location without giving sufficient notice pursuant to the contract. This act did entitle Mr Stokes to accept the repudiatory conduct, terminate the contract and seek damages.

68.I am not satisfied that Mr Stokes has succeeding in proving that the defendant has breached the contract under the remaining elements of his claim for the reasons set out above.

If Southcorp did breach the contract what is Mr Stokes entitlement to notice?

69.The defendant’s submits there is no evidence of any loss or damage suffered as a result of any breach. They argue that notice was given of all changes in accordance with the relevant contractual provisions.

70.The contract expressly provides “Your employment may be terminated by the

Company giving to you without cause, not less than one months notice in writing or

paying to you one months base salary in lieu of notice”.

71.Clearly it was open to the defendant to terminate the plaintiff’s employment at any time and pay one month’s base salary in lieu of any notice. The plaintiff was only given two weeks notice of the decision requiring him to relocate to the Abbotsford location. He is therefore entitled to receive a further two weeks pay in lieu of notice.

Did Mr Stokes have a contractual entitlement to any severance payment?

72.Mr Stokes asserts that he had a contractual entitlement to receive a severance payment in the event that his position was made redundant. The contract expressly binds Mr Stokes to “Southcorp policies and procedures”; however it does not expressly stipulate a severance entitlement. The reader is directed to locate a copy of these policies “on Southcorp’s intranet or ask your manager for a copy.”

Did a severance or redundancy policy exist?

73.The plaintiff gave evidence that the company published a policy concerning redundancy and published it on the intranet. The Southcorp “Personnel Policy Manual”, which contains the Redundancy Policy (Policy No. 2-4, effective from 15 August 1997), was tendered in evidence: It is in a common form, and it is entirely unremarkable.

74.The policy provides that: “Redundancy occurs when Southcorp determines that a particular position is no longer required.” The policy draws on the classic definition of redundancy in The Queen v Industrial Commission of South Australia; ex parte Adelaide Milk Supply Co-operative Limited and Foster’s Group Ltd v Wing.

75.A rather unusual aspect of this case was the suggestion made during the hearing that the defendant had no redundancy policy, indeed “no policies at all” from at least 2003 until 2006. This seems most remarkable for a relatively large organisation in the midst of a corporate takeover. The evidence given by the defendant’s witnesses in this regard was less than compelling.

76.The suggestion hangs upon the evidence of Mr Ramage, a Foster’s (and formerly Southcorp) human resources manager. Mr Richardson also adverted to the absence of any policies.

77.I prefer the plaintiff’s evidence that the Policy Manual was in existence at all relevant times, a copy being available in the HR department. Mr Ramage asserted it had allegedly been “rescinded” by the HR manager some time before Mr Ramage commenced his employment, which was on 31 March 2003. No document was put forward, and according to Mr Ramage none exists, to support this suggestion. He did however concede that a copy was available in the HR department.

78.The Court further notes that the defendant actually admitted, in this proceeding, that both the Redundancy Policy and the Policy Manual existed. In Paragraph 3 of its Defence the defendant asserts that “the Plaintiff was bound by the various policies and guidelines of the Defendant”. And in the particulars to Paragraph 5 of its Defence the defendant specifically says: “The Redundancy Policy is contained in a

document known as the HR Policy Manual issued by the Defendant from time to

time.”

79.Evidence showed the defendant’s Payroll Department calculated redundancy entitlements for employees according to the formula set out in the Policy Manual.

80.According to Mr Richardson, some 490 Southcorp employees out of 3,100 (including all of the other desktop support specialists such as the plaintiff in other States, except for two who took jobs with Foster’s), were made redundant in 2005/2006, and were paid redundancy amounts.

81.I conclude that a redundancy policy, as set out in the tendered document did exist at the time of the plaintiff ceasing employment with the defendant.

Was the redundancy policy incorporated into the contract of employment?

82.This aspect of the claim requires a determination as to whether there is sufficient evidence, on the balance of probabilities, to conclude that the parties objectively intended that the severance policy was to be contractually binding on their relationship.

83.Incorporation is a matter of fact. At common law an entitlement to redundancy payments will not be implied into a contract of employment. Nor can it be concluded that an entitlement to redundancy arises based on a policy or practice that may have been adopted more broadly in relation to other employees.

84.The plaintiff submits the decisions of the Full Court of the Federal Court in Riverwood International Australia Pty Ltd v McCormick[11] and in Goldman Sachs JBWere Services Pty Limited v Nikolich12 should be applied in this matter. In Riverwood the Court held that a redundancy policy was incorporated into the contract of employment in the following circumstances:

[11] (2000) 177 ALR 193

(a) The contract of the employee stated - “You agree to abide by all company

policies and practices currently in place, any alterations made to them, and

any new ones introduced.” This is relevantly indistinguishable from the term in

this case.

(b)	The manual was concerned principally with laying down employee entitlements. The manual in this case has a similar focus.
(c)	The manual also contained provisions of an administrative nature and imposed some obligations on the employee, as does the manual in this case.
(d)	Redundancy payments were made to other employees to whom the manual applied, as was the case here.

85.The defendant submits that the decision in Riverwood is clearly distinguishable to that presently before this Court. In Riverwood, the relevant clause said (in relation to the employer’s policies): “You agreed to abide by …”

86.They argue, as noted by Jessup J in Nikolich, care needs to be taken in simply applying Riverwood more generally, and based on some similarity in words. When one reads the judgements in Nikolich, it is clear that the Court decided the case before them based very much on its specific facts, and those facts and that material is not present here. Riverwood itself also turned on two explicit findings by the Appeal Court.

87.Specifically the defendant submits, that first, the use of the words “abide by” was said to be capable of being read to encompass both compliance with the obligations imposed by the policies, and acceptance of the benefits conferred by the policies. This duality flowed from the dictionary definition of the meaning of the words “abide by”, namely “to accept and continue to observe”. Second, the predominance of the relevant policies and provisions dealt with in those policies operated in favour of the employees, by way of conferring specific benefits on them. In those circumstances, to read the relevant contractual clause as not providing for contractual entitlements in favour of the employee was seemingly at odds with what the policies actually said. In the Defendant’s submission, neither of those considerations applies here.

88.Furthermore the defendant submits that the clause in this case, “you will be bound by” is quite different to the relevant clause in Riverwood. The Macquarie Dictionary definition of “bound” means relevantly in relation to the Plaintiff, “under obligation to, legally or morally”. In this case, the words “you will be bound by” do not admit of the broader meaning of “abide by” adopted in Riverwood. To say to an employee, “you are bound by”, means that the employee is under an obligation to follow. They submit that the Court cannot get from the ordinary meaning of those words to a more general proposition that the employee also is entitled to the benefit of those provisions (i.e.: that the employer is bound), at least not on the rationale adopted in Riverwood.

89.The defendant argues that the relevant policy document in this case cannot be described as “predominantly this or predominantly that”. It is more directly about how things are to be done at the workplace, as opposed to a range of additional benefits being conferred on the employee. The majority of the provisions deal with the actual practical mechanisms in place to work things out, as opposed to creating or conferring additional entitlements.

90.The defendant also refers to the decision in Nikolich.13 Nikolich was a similar case to Riverwood, where the relevant provisions of a contract were to the effect that the employer “will expect [the employee] to comply as applicable” with the employer’s various policies.

91.Although the trial judge in that case dealt with the issue as being similar to Riverwood, a majority of the Appeal Bench in Nikolich expressly adopted a different approach, one which the defendant adopts and submits is correct: namely, the question of whether the identified policies were contractual does not specifically turn on the expression of the words used in the contract. Rather, the question of what terms of a contract have contractual force is a question of intention, objectively assessed by the Court.14

92.The Court in Nikolich placed heavy reliance on the fact that the alleged policy document was sent to the relevant employee at the time.He signed his contract. He

12 [2007] FCAFC 120
13 [2007] FCAFC 120 (7 August 2007, Black CJ, Marshall & Jessup JJ).

was expressly asked to review the terms of the policy document closely. He was asked to sign a number of documents derived from the policy and return them with the signed contract to the employer, and the document given to the employee was the only one that could fit the description used in the contractual provision (office memoranda and instructions).

93.The majority placed specific reliance on these facts and this evidence, as it was the very material that suggested that the employer regarded the policy material as important to its relationship with its employee. Based on that material, the majority was able to conclude that objectively assessed, the parties intended that the policy material would have contractual effect as between them.

94.Here the facts are most different to those in Nikolich. Mr Stokes cannot conclusively identify the document which is the supposed source of his entitlements. He cannot confirm that he has ever seen it before the commencement of proceedings. He never saw it on the intranet. Nor was he asked to read it or look at it and it was never said to be important to him or that it affected his rights.

95.Willis v Health Communications Network Limited15 is a case that the Defendant says is not dissimilar to the present. The employer in that case did not have a “clear published redundancy policy”.16 The relevant documents in that case were referred to internally as a policy or a practice, and although it was not formally published in any sense, it had been applied to employees in the past in accordance with its terms. There is no direct evidence of any redundancy payments being made to other employees that were made redundant by the Defendant (but one might presume that such payments were made).

96.At first instance in the Willis decision, the trial judge found that the employer had applied the policy as a fact, and that the employee was entitled to the terms of the policy. The Judge said that he was convinced that it was a term of the contract. It was argued on appeal that the redundancy policy was implied into the contract by operation of law.17 This submission was specifically rejected on appeal.18

97.The defendant in my view correctly identifies that Mr Stokes’ argument becomes one based solely on the wording of the clause in the contract alone. And it is that type of argument that was implicitly rejected by Marshall J in Nikolich, and explicitly criticised

14 See paras 118-19 (Marshall J) and para 283 (Jessup J).
15 [2007] NSWCA 313 (6 November 2007, Mason P, Tobias and McColl JJA).
16 Ibid at para 14.
17 Ibid at para 32.

by Jessup J. In paragraphs 283 to 290 of Nikolich, Jessup J warns against the very thing contended for by the Plaintiff in this case. As in Nikolich, Riverwood was a case that turned very much upon its own facts. The evidence in Riverwood was nothing like this case.

98.All of the materials considered as relevant by the Court in both Riverwood and Nikolich are absent in this case. I therefore conclude that the Plaintiff has failed to demonstrate on the balance of probabilities, that the parties intended the relevant policy documents which might fit the broad description of “Company Policies”, to be contractually binding on the parties to the contract.

99.The Court concludes for these reasons that the plaintiff has not established that he has any contractual entitlement to a redundancy payment, even if he were to be made redundant on the facts. The claim for severance payments in the pleading must fail.

100. While this conclusion brings the claim for severance payments to an end, I propose to examine the factual matrix to determine, whether, if I am wrong about this, whether Mr Stokes was in fact, made redundant.

Alternatively, If a contractual entitlement to severance does exist , was Mr Stokes made redundant?

101. Redundancy is a question of fact. It requires determination, in the sense of deliberate conduct on the part of the employer, but not any formal “determination” (in the sense of a quasi-judicial ruling). The “critical question is whether through no fault

of the employee his or her role no longer exists or the duties have so changed that

for all practical purposes the original role no longer exists.” : per Habersberger JA in

Foster’s Group Limited v Wing

102. In Wing, the Court of Appeal accepted that as far as an alleged contractual redundancy provision was concerned, the common law meaning of redundancy applied, and the starting point for that question was the case of R v Industrial Commission (SA); Ex parte Adelaide Milk Supply Co-Operative Limited.19 The expression of “redundancy” in the policy document in this case is substantially similar (if not identical) to that adopted in Wing and Adelaide Milk.

103. In Wing, the Court said that redundancy in the context of the employer’s materials meant simply this: “a job becomes redundant when the employer no longer desires to have it performed by anyone”. The Court then went on to consider Dibb v Commissioner for Taxation (Cth).20

18 Ibid at paras 33, 47, 56 and 57.

104.          In that case, the Full Federal Court referred to what was said by Ryan J in

Jones v Department of Energy, namely:

“However, it is within the employer’s prerogative to re-arrange the organisational structure by breaking up the collection of functions, duties and responsibilities attached to single position and distributing them among the holders of other positions, including newly-created positions … What is critical for the purpose of identifying a redundancy is whether the holder of the former position has, after the re- organisation, any duties left to discharge. If there is no longer any function or duty to be performed by that person, his or her position becomes redundant in the sense in which the word was used in the Adelaide Milk Co-operative case.”21

105. In Jones, Ryan J observed “that a job involves ‘a collection of functions, duties and responsibilities entrusted, as part of the scheme of the employer’s organisation,

to a particular employee”23. The Court in Dibb accepted that view.

106.       The following paragraph of the decision in Dibb was set out in full by the Court

in Wing,:

“We consider that it is more accurate to say that an employee becomes redundant

when his or her job (described by reference to the duties attached to it) is no longer to be performed by any employee of the employer, though this may not be the only circumstance where it could be said that the employee becomes redundant. Reallocation of duties within an organisation will often leave the employer to consider whether an employee, previously employed to perform specific functions assigned to a particular ‘job’, will be able to perform any available ‘job’ existing after such reallocation. Even if the employee’s job, defined by reference to its duties, has disappeared, he or she may be able to perform some other available job to the satisfaction of the employer. In that case, no question of redundancy arises. It is only if the employer considers that there is no available job for which the employee is suited, and that he or she must

therefore be dismissed, that the question of redundancy arises.”22 [Emphasis added]

107. The Court in Wing concluded that the Trial judge adopted the wrong test in considering that any change to the job, responsibilities and rewards (as a package),

19 (1977) 16 SASR 6.
20 (2004) 136 FCR 388.
21 Wing, supra, at 231-2 (para 34).
22 Ibid at 233 (para 35).

amounted to a redundancy. The defendant submits that the plaintiff in this case has
adopted this erroneous characterisation of the circumstances.

108. In reaching his conclusion that the employee’s position in Wing was not made redundant, Habersberger AJA relied firstly on the evidence that the role still existed after the relevant employee had left the organisation. Fosters in that case gave evidence that it would always need that position, but this evidence played no part in the trial judge’s consideration of the issue. On appeal, His Honour said that this was a most compelling argument.

109. Secondly, His Honour said that there was no doubt that even after the changes to the role of the employee in that case, there was work that remained to be done in that role, whatever the title might have been.

110. Third, there was a body of evidence in the case regarding the efforts taken by the employer to replace the employee. That evidence was said by His Honour to be a substantial impediment to a finding that the position had been made redundant.

111. After the conclusion of the hearing of this case, the plaintiff’s solicitors forwarded the decision of Byrne J in International Flavours &Frangrances v Hoff [2008] VSC 56. That decision is consistent with the above analysis of the case law, and confirms that each case of this type will ultimately turn on its facts.

Mr Stokes’ position

112. The plaintiff submits that job the plaintiff was doing – the “particular position” in the terms of the redundancy policy – was no longer being done by any employee after 31 March 2006, through no fault of the plaintiff. He points to the following evidence supports that conclusion:

(a). The contract of employment specifically defines the duties of the Plaintiff: It gave him responsibilities for specific sites. By early 2006 much of his job had been contracted out to Commander. Of the remaining functions, they largely consisted of servicing the East Burwood site (which was closed on 31 March 2006) and servicing some of the smaller wineries (which were in the process of being contracted out to Commander). The job of the plaintiff had ceased to be performed by any employee of Southcorp. Instead, to the extent that the job was being performed, it was performed by the out-source company, Commander.

(b).	On 31 March 2006 there was a Desktop Support Specialist employed by Southcorp. The next day there was not. Although a contractor was engaged for some time to do some of the work the plaintiff had been doing, Southcorp did not replace the Plaintiff in that position.
(c).	The job of the plaintiff - his “particular position” in the terms of the redundancy policy – was located at 303 Burwood Highway, East Burwood. With the closure of those premises on 3 April 2006, that job no longer existed.
(d).	The immediate supervisor of the plaintiff had been made redundant and paid a redundancy package; as was her supervisor; as was her supervisor. A whole line of management in that area had been made redundant and paid redundancy packages. In addition, four of the other six desktop support specialists were made redundant (the other two resigned and commenced with Fosters).

113. By contrast the Defendant submits there is no basis for concluding that the Plaintiff was made redundant by the Defendant.

114. The Defendant submits that Wing is almost on all fours with this case. First, on the reasoning in Dibb that was accepted in Wing, the Court made clear that if any alternative position was available for the employee, then no question of a redundancy arises in any event. They argue that was clearly the case here.

115. The Defendant did not want to or intend to terminate the employment of the Plaintiff. It had a role for him (regardless of any alleged differences). On the authority of Wing and Dibb, no redundancy therefore arises. A change in role or a change in position at best might amount to a repudiation of the contract, but it is not a question of redundancy.

116. I find force in the concluding submission of the defendant. They submit that Mr Stokes has effectively equated an alleged repudiation or constructive dismissal of the contract, with a redundancy (i.e.: the very thing that Dibb and Wing very neatly identified as an important distinction). That is, the Plaintiff has focussed on some alleged impacts on him, including in relation to his terms and conditions of employment, and alleged that because of this, his position was made redundant.

117. This is the approach specifically rejected in Wing. The key to redundancy is to identify the collection of functions, duties and responsibilities that the employer at the time determines that it requires to be done by an employee to run its enterprise. If those functions, duties and responsibilities do not exist any longer, and the employee is ultimately dismissed by the employer as a result, then it can be fairly said that position is redundant. Redundancy is not about looking at the terms and conditions of the employee’s package who happens to be in the position, to see if any changes are made to those terms and conditions (such as the location of work or the allocation of a vehicle).

118. Mr Stoke’s role was to service client sites, wherever they may be. He had no set sites. He went to the sites where the work was. He accepted this very directly. The fact that the Plaintiff may have gone to some sites less frequently and gone to some other sites only occasionally, has no bearing on the collection of functions, duties and responsibilities that were still required.

119. At all relevant times, the newly integrated Fosters/Southcorp structure needed an IT Field Support Consultant in Victoria to do what the Plaintiff had been and was doing all along: that is, servicing its sites with IT support. The role was identical, or substantially identical, and it continued. It is not relevant as to who employed the individual employee.

120. Fosters/Southcorp integrated structure still needed Mr Stokes to do what he had been doing since April 2005, since September 2005, and ongoing.

121. The Plaintiff was requested to freely resign from his employment with the Defendant or stay with the Defendant. Whichever way was suitable to the Plaintiff.

122. I am satisfied that the three key considerations of the Appeal Bench in Wing as to the lack of a redundancy in that case exist here. The evidence is that the Fosters/Southcorp integrated model always required the role that the Plaintiff was performing.

123. Second, the performance of the tasks performed by the Plaintiff did not just disappear on April 2006. Those tasks continued. Someone had to do them. When Mr Stokes did not turn up for work at the commencement of April 2006, Fosters had to locate someone else to perform the Plaintiff’s role. The duties still existed, and they were still performed by other persons following the departure of the Plaintiff.

124. In light of the evidence and the reasoning of the binding decision in Wing, I am satisfied that a redundancy did not arise on the facts of this case.

If he was made redundant, did the conditions precedent to the payment of severance occur?

125. In any event the terms of the policy prove fatal to the plaintiff’s claim. “Redundancy occurs when Southcorp determines that a particular position is no longer required. There are various situations that may cause a redundancy …” [Emphasis added]

126. For the Plaintiff’s entitlement to any redundancy payment to be triggered the Defendant must have determined that a particular position was no longer required. There is no evidence that this occurred in this case.

In the alternative, if he did have an entitlement to severance payment, were offers of suitable alternative employment made to Mr Stokes, thereby depriving him of that entitlement?

127. The Plaintiff also submits that the position that was offered to him was not “suitable alternative employment” within the meaning of the redundancy policy for the following reasons:

(a). The offer required the plaintiff’s resignation from Southcorp. The new position was with a different employer (albeit, by this time, one which was a related company), an organization which the plaintiff did not trust. Trust and confidence is a fundamental part of the employment relationship, on both sides. The Plaintiff considered Southcorp to be the best employer he had ever worked for. In contrast, the plaintiff felt Fosters had wrongly blocked his pay rise; had stated that it would not increase his pay in the future; had reneged on an agreement to provide time off in lieu; and had threatened to hound him from his job if he did not sign the contract with Fosters.

(b). The proposed job was different. In the Southcorp job the plaintiff looked after specific sites and built relationships with the colleagues he was regularly dealing with there. In contrast, at Abbotsford he would have been travelling less and servicing a wider range of sites, but with no specific responsibility for any of them. He felt that job was a very unattractive and de-personalized one, compared to the Southcorp job.

(c). The new position was relocated to a workplace in Abbotsford, which required him to travel a considerable distance each day to attend, about 2½ hours per day, and that time would be unpaid.

(d). The proposed contract for the alternative employment gave significantly reduced entitlements. Mr Perrettt conceded that the proffered Foster’s contract (as sent to the plaintiff) had significantly reduced entitlements compared to the Southcorp contract. The proposed Foster’s contract which was sent to the plaintiff was plainly deficient; obviously missing every second or third page from what might have been a more complete document. There is no evidence that a complete document was ever sent to the plaintiff – the evidence of Mr Perrettt is that it was the incomplete document which was sent, and which the plaintiff was required to sign.

128. The deficiencies in the document sent to the plaintiff, compared to the Southcorp job, are manifest:

(a). The new position was for lesser remuneration, removing the

right to a vehicle and the wine allowance.
(b). The total remuneration was specified ($63,030), but there was
no specification of how much was salary, how much superannuation,
and how much was non-cash benefits.

(c).	No hours of work were specified.
(d).	No place of work was specified.

(e). There was no right to any salary review, or to any bonus (the relevant clause, 10.5, sets a budget which could not possibly be met).

(f). No annual leave or sick leave entitlements are given. (g). The termination entitlements are not set out. There is no right to any payment on redundancy. Nor is any minimum notice period prescribed. (h). There is no right to reimbursement of expenses set out, and no right to time off in lieu of overtime.

(i). No company policies are referred to, so there would be no right to internal protection from harassment or discrimination, and no right of access to any internal grievance procedure or benefit of any graduated discipline policy.

129. For these reasons, I accept that it was open to the plaintiff to refuse to sign this proposed contract of employment with Foster’s. The contract was clearly deficient and required clarification. However this does not allow the conclusion that his position was redundant.

Conclusion

130. I am satisfied that the defendant gave the plaintiff two weeks notice pursuant to the contract of its intention to change location. Pursuant to the contract, one months notice was required. The defendant is ordered to pay to the plaintiff a further two weeks pay in lieu of notice, in the sum of $3444 within one month, together with interest on that sum.

131. For the reasons expressed above I am not satisfied that the plaintiff has proven that the alleged redundancy policy was incorporated into his contract of employment.

132. In any event, even if it was, I am not satisfied that the circumstances in this case amount to a redundancy in fact.

133.          The Plaintiff’s claim for a severance payment is dismissed.

134.          Liberty to apply on the question of costs is reserved.

(2001) 185 ALR 152, and Goldman Sachs JBWere Services Pty Limited v Nikolich [2007] FCAFC
1201.

2 Australian Broadcasting Commission v Australian Performing Rights Association Ltd (1997) 129 CLR 99 at

109 per Gibbs J.

Mansfield JJ and Goldman Sachs JBWere Services Pty Limited v Nikolich [2007] FCAFC 120 at [30] per Black
CJ, at [121] per Marshall J and at [285]-[286] per Jessup J.

404; Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41 at 65-66, 95, 117-118, 121; Moorgate Tobacco Co Ltd v Philip Morris Ltd [No 2] (1984) 156 CLR 414 at 435; Adelaide Corporation v Jennings Industries Ltd (1985) 156 CLR 274 at 281-282; Hawkins v Clayton (1988) 164 CLR 539 at 571-573; Byrne v Australian Airlines Limited (1995) 185 CLR 410 at 422 and 441.

of equally plausible alternatives is fatal”.

Law of Employment, 5th ed at 138.