Daryl Davis v Sullair Australia Pty Ltd - [2016] VMC 25

IN THE MAGISTRATES’ COURT OF VICTORIA

AT MELBOURNE

INDUSTRIAL DIVISION F13112898

BETWEEN:

DARYL DAVIS Plaintiff

-and-

SULLAIR AUSTRALIA PTY LTD Defendant

MAGISTRATE:   GINNANE
WHERE HEARD:   MELBOURNE
DATE OF DECISION:   13 DECEMBER 2016[1]
[1] Although the plaintiff and defendant made submissions about hearsay statements and other objections to affidavits, it has not proved necessary to make rulings about the same given my findings.
CASE MAY BE CITED AS:   DARYL DAVIS v SULLAIR AUSTRALIA PTY LTD
MEDIUM NEUTRAL CITATION:  [2016] VMC025

Catchwords: Employment – redundancy – whether plaintiff’s termination of employment for performance a “sham” – extensive period of performance review undertaken and arising from identification of plaintiff as a “low performer” as part of annual review - allocation of some minor functions after termination of plaintiff to an equivalent level manager – whether plaintiff’s position redistributed or reallocated as to render the job performed prior to termination no longer existing - period of time elapsing before “replacement” appointed – whether employee commencing months after plaintiff’s termination was appointed to a new position or the same job as the plaintiff’s – whether adverse inferences to be drawn by failure of defendant to call certain witnesses – discussion of the meaning and application of Jones v Dunkel – variations to defendant’s organisation chart after plaintiff’s termination – plaintiff terminated solely for performance - claim dismissed

REASONS FOR DECISION

APPEARANCES: COUNSEL SOLICITORS

For the Plaintiff Mr C Gunst Q.C. McDonald Murholme

For the Defendant Ms R Sweet King & Wood Mallesons

HIS HONOUR:

The plaintiff sues the defendant alleging that his termination of employment arose because of redundancy. If he is correct then he is entitled to an amount by way of redundancy payment and it is not in issue between the parties as to the quantification of the entitlement amount[2].

[2] A claim for a statutory redundancy under the Fair Work Act 2009 was not pursued following a concession by counsel for the defendant that if a redundancy existed the plaintiff’s entitlement was pursuant to its Policy

The plaintiff was represented by Mr Gunst QC and the defendant was represented by Ms Sweet of counsel.
By consent the parties had earlier agreed to orders in which the evidence in chief of witnesses was by way of affidavit.
The plaintiff produced an affidavit sworn 15 April 2016 to which was attached various exhibits. The defendant in turn relied upon two affidavits. The first was made by its Managing Director Mr Funnel and the second, by its Human Resources Manager Ms Law.
The defendant imports, sells and services air compression equipment. It is based in Dandenong in Victoria with sales and service centres located around Australia. It is ultimately a subsidiary of an American company Sullair LLC. It has several competitors in its field. The defendant’s compressor products comprise both portable diesel compressors and stationary electric compressors. I was told that portable diesel compressors are typically used where access to electricity is problematic such as remote and outdoor locations including the mining industry.
A good deal of the plaintiff’s employment history with the defendant was set out in his affidavit and it is not contentious. The plaintiff’s employment commenced with the defendant on 1 February 2007. He began in the position of Construction and Mining Product Manager. On 1 January 2010 he was appointed to the position of Regional Sales Manager Victoria, South Australia and Tasmania. On 25 August 2010 he was appointed to the position of Sales Manager Victoria/South Australia. On 3 October 2011 he was appointed to a position described as “National Product Manager”. This is the title and the position he occupied when his employment was terminated.
In the period from 2011 to February 2015 the defendant employed 2 “National Product Managers.” One “National Production Manager” oversaw the defendant’s portable diesel compressor operations and the other oversaw its stationary electric compressors division.
At the relevant time, the plaintiff occupied the position of “National Product Manager” for portable diesel compressors and the incumbent in the position of National Product Manager for Stationary Electric Compressors was Mr Subramonian.
It is a notorious fact that the mining industry in Australia has declined from the peaks it has hitherto enjoyed especially in Western Australia and Queensland. The defendant’s evidence was that since sometime in 2012 the market for compressors and, in particular, portable compressors declined.
It was not contested by the plaintiff that commencing in 2014 the defendant made several dozen positions redundant. The evidence from the defendant’s Managing Director, Mr Funnell and Ms Law was that the defendant shed almost one third of its workforce nationwide.
Between November 2014 and February 2015 the plaintiff’s immediate superior Mr Gomez undertook a formal Performance Review and Management of the plaintiff.
The plaintiff was terminated from his employment with the defendant with effect from 25 November 2015. A letter signed by Mr Dylan Gomez, National Sales and Marketing Manager Sullair Australia that advised him of his fate was expressed relevantly in the following terms:

The Company has decided to terminate your employment effective the 25^th of February 2015. Over the past months it has become apparent you are unable to effectively discharge the responsibilities of your role.
We have considered your explanation for this lack of performance against agreed actions and we believe this level of performance to be unacceptable. As your actions seriously impact on our ability as a company to deliver on our commitments made to our stakeholders.
Specifically your:
1.Failure to sell 6 Euro Portables
2.Inability to deliver small portable growth strategy of quality
3.Inability to provide a marketing Plan of quality
4.Failure to deliver a new Summer campaign to launch in January 2015
5.Failure to deliver a strategy to manage portable pricing with declining AUD
6.Failure to complete an adequate features and benefits presentation.

Performance issues were documented following performance discussions held with you on 24/11/2014, 8/12/2014 and 14/1 2015 and you have been issued with written warnings on 25/11/2014 and 8/12/2014.

The competing claims

The plaintiff would have me accept that the termination of his employment for poor performance was not genuine and was designed for the purpose of avoiding a termination by reason of redundancy and the attendant payment. This was stated expressly by the plaintiff in his affidavit [CB 37 paragraph 54]. He said as follows:

“I believe that my employment was terminated because the Defendant no longer required my position to be performed at all or in Melbourne. I believe that the allegations of unsatisfactory performance that were made against me were contrived in order for the Defendant to avoid making a redundancy payment to me.”

The defendant contested the allegation that it engaged in a sham. It pointed to the span of time over which the plaintiff’s performance was undertaken having formally commenced in November 2014 and concluding in February 2015with the plaintiff’s termination together with the provision to him of written warnings in November and December 2014 arising from the performance review process.
Ms Law the defendant’s Human Resources Manager raised queried in an email to Mr Gomez a concern she had that there may be a perception that the performance review process applied to the plaintiff had been undertaken hastily. The concern expressed by Ms Law of “undue haste” was relied on by the plaintiff as evidence from which to infer that the performance review and management of the plaintiff was a canard. Ms Sweet, counsel for the defendant submitted Ms Law’s characterisation is not probative of the matters I must decide.
The question of fairness in the way a performance review by management is undertaken of an employee whilst often a relevant consideration in a statutory employment setting is not of like order at common law. An employee may at common law terminate a contract of employment and the lawfulness of the termination will not be affected because the manner of the termination or the process attendant on it was less than ideal or made without affording the employee procedural fairness unless there is imported into the contract of employment some express or implied obligation to do so. The plaintiff’s claim was not pursued on the basis of any such breach. Thus I do not accept as a default position that because a process undertaken by an employer was “hasty” and possibly posed a risk factor that might be relevant in a Fair Work Commission context, it will probative of the existence of a sham process to terminate an employee for unsatisfactory performance in order to avoid a redundancy. However, this does not mean that a failure to undertake a genuine process leading to a termination ostensibly for performance may not amount to in a relevant case evidence in support a claim that the sole reason for the termination was not the employee’s work or conduct related performance but some other reason. In my view, each case calls to be considered on its merits.
The plaintiff argued that following the termination of his employment Mr Subramonian (who occupied a like position but in relation to stationary compressors) undertook some of the duties he had performed and assumed his functional position.
The plaintiff also pointed out that in December 2015 (10 months after his employment was terminated) the defendant hired Mr Lance Maizey in a position called “Portable Product Manager”. This was a new title within the defendant and not one that had previously existed as part of its organisational structure. The plaintiff submitted that the job taken up by Mr Maizey in December 2015 was not the same job he had held. However, the defendant argued that a decision taken in December 2015 could not have any relevant work to do but, in any event, if it did, that job was essentially the same as the plaintiff had performed.
The defendant said the critical question was whether the plaintiff’s position, in fact, was made redundant in February 2015. In other words, when the defendant decided to terminate the plaintiff’s employment, did it no longer desire the position that the plaintiff had as occupied as National Product Manager for portable compressors to be undertaken by anyone? The defendant maintained that it did.

The plaintiff’s evidence

The principal matters deposed to by the plaintiff by way of evidence were as follows:

a.That in or around December 2013 he attended an annual performance review with Fred Funnel (Mr Funnell), the Managing Director of the Defendant, during which he received positive feedback from Mr Funnell regarding his performance.
b.In or around January 2014 he commenced reporting to Dylan Gomez (Mr Gomez), the National Sales and Marketing Manager. He said he attended weekly scheduled meetings with Mr Gomez, usually on a Monday. During these meetings Mr Gomez never mentioned that his performance was unsatisfactory.
c.In or around March 2014 a number of positions in the defendant were made redundant including the Chief Financial Officer, Information Technology Manager, Operations Manager, Human Resources Manager and Engineering Manager.
d.On 24 November 2014 the plaintiff was scheduled to attend a meeting with Mr Gomez at 7:30 am and the meeting was later rescheduled to 2 pm that morning Mr Gomez told the plaintiff that the scheduled meeting would in fact be a performance review and that he could bring a witness. The plaintiff said he attended with Maree Wiles (Ms Wiles), a Customer Support Manager. At the performance review meeting Ms Wiles, Mr Gomez and Sonya Law (Ms Law), the Human Resources Manager of the defendant were present. The plaintiff said that a series of allegations were made against him in relation to sales, lack of initiative, poor communication and the quality of his work. The plaintiff said he disputed the allegations and noted that he had received a good half-year review and that his role involved product support and that some of the demands being made of him went beyond his position description. He said he was told that his responses were not satisfactory and that he would be issued with a written warning and that he would be required to achieve certain targets within a two week timeframe including selling 6 Euro portables, developing a small portable growth strategy, developing a summer campaign to launch in January 2015, developing a strategy to manage portable pricing against the falling AUD, completing features and benefit presentations and improving his communication. The plaintiff complained that the outcomes were subjective and that the timeframe of two weeks to complete them was unrealistic. Nonetheless, he was told that there would be a follow-up performance review meeting on 8 December 2014. The plaintiff produced a copy of the performance review meeting record from 24 November 2014 which he said showed that the defendant referred to his position as “Senior Stationary Product Manager” and that the defendant expected him to perform tasks that were “over and above my job”.
e.On 25 November 2014 the plaintiff was issued with a written warning. The plaintiff produced a copy of the written warning. The plaintiff said he did not agree to sign the warning because he did not agree with its content.

The plaintiff referred to an email sent by Ms Law to Mr Gomez on 26 November 2014. The plaintiff argued that the email is evidence that Ms Law had already decided to provide him with a final written warning letter after the next meeting scheduled on 8 December 2014 and a subsequent review after which if the plaintiff was “still not performing” then he be issued a termination letter that day. Ms Law’s email also acknowledged that the plaintiff “we may not have provided a reasonable amount of time between meetings but think we have agreed to take this risk”. The plaintiff produced the email dated 26 November 2014.
The plaintiff said that during the purported performance management period he was never provided with any support or mentoring by Mr Gomez. He said in fact that Mr Gomez was in Perth for a period of time and therefore was inaccessible to him.
The plaintiff alleged that on 5 December 2014 Ms Law sent an email to Mr Gomez instructing him to attend the performance meeting with the plaintiff on 8 December 2014 with a final written warning letter prepared “and a follow up performance meeting on 15/12/2014 and if still not performing then[3] Termination Letter that day”. In the email Ms Law repeats her earlier concern and states that “just so you are aware we may not have provided reasonable amount of time between meetings but think we have agreed to take this risk”. The plaintiff contended that it was evident from this email that no matter how he performed or how he responded the decision had already been taken to give him a written warning and eventually to terminate his employment. He produced a copy of the email dated 5 December 2014.

[3] My underlined emphasis

The plaintiff attended the meeting on 8 December 2014 together with Ms Law, Mr Gomez and Ms Wiles, his support person. The plaintiff’s evidence was as follows:

a.He provided a summary of what he had achieved over the previous fortnight. He complained that the performance requirements had not been clearly defined and that Mr Gomez had been in Perth and he had been unable to communicate with him adequately.
b.That despite his response he was told that his reasons for underperforming were not satisfactory and that he would be issued with a final written warning. He was told that the performance management process would continue with the same performance objectives to be achieved. The next performance meeting review was scheduled for 15 December 2014. The plaintiff produced a copy of the performance meeting report from 8 December 2014. On 8 December 2014 plaintiff received an official warning letter from Mr Gomez. He produced a copy of that letter. He said he did not sign the warning because he said did not agree with its contents.
c.The plaintiff said that from 10 to 19 December 2014 he was on personal leave due to the stress of his performance management process including having been provided written warnings. He said he secured a medical certificate for this period of time.
d.The plaintiff said that from 20 December 2014 to 4 January 2015 he was on a period of annual leave.
e.The plaintiff said that from 5 January to 9 January 2015 he took a further period of personal leave and he submitted a further medical certificate for this time.
f.The plaintiff said that he returned to employment on 12 January 2015.
g.The plaintiff said on 14 January 2015 he attended a performance review meeting with Mr Gomez and Ms Law to discuss his performance objectives. He said by this stage he had achieved a few of the objectives but was informed that the process would continue as he had not completed all of the objectives that had been set. He was told there would be a follow-up meeting scheduled for 18 February 2015. The plaintiff said that during the meeting he was asked not to take his preapproved annual leave from 19 to 30 January 2015 but to cut it short. He said he mentioned that he had prior family commitments but he would return earlier on 28 January 2015 to prepare for a scheduled sales conference. The plaintiff produced a copy of his performance meeting report from 14 January 2015.
h.The plaintiff was on annual leave from 19 to 27 January 2015. He returned to work as foreshadowed on 28 January 2015.The plaintiff said that from 9 to 13 February 2015 he attended a sales conference and delivered and a one-hour presentation on the defendant’s 2015 portable compressor marketing plan.
i.The 18 February performance management meeting was deferred to 25 February 2015.
j.On 25 February 2015 the plaintiff attended a performance review meeting. Mr Gomez and Ms Law were in attendance. The plaintiff said the meeting commenced with some formalities but he was quickly informed by Mr Gomez and Ms Law that the defendant had decided to terminate his employment due to the fact that there had been no improvement in his performance. The plaintiff said he was not given an opportunity to discuss his performance or respond to the allegation that he had not improved. He said he had prepared an 8 page report detailing his satisfactory performance but he was not given an opportunity to speak to it. He produced a copy of his 8 page report.
k.On 25 February 2015 Mr Gomez emailed the defendant’s Sales and Marketing teams telling them of the termination of the plaintiff’s employment. That email advised Sales & Marketing staff to “direct all Portable Product related queries to Sriram [4]until further notice”. It went on to say:
“Please note that we are committed to the Portable business and look forward to working with you all on implementing our growth tragedies throughout 2015”.

A copy of the email of that date was produced by the plaintiff.
[4] Mr Siriam Subramonian

The plaintiff gave me an account of the 6 areas referred to in his letter of termination in which it was alleged that his performance was unsatisfactory. He responded to each of them. These responses reflected the matters he had committed to in writing which he said he had intended to refer to in the meeting had he not been terminated. However, the plaintiff did not make his written response available to Mr Gomez or Ms Law prior to the meeting despite the letters of warning putting him on notice that his employment was at risk.

The plaintiff said that after his termination and in about May 2015 he had a conversation with Mr Subramonian during which Mr Subramonian told him that he had been directed to assume his responsibility for portable products in addition to his own responsibilities for stationary products. He also allegedly told the plaintiff that there appeared to be no efforts being made by the defendant to employ anyone in the plaintiff’s position.
The plaintiff said that prior to his termination he and Mr Subramonian had held discussions in which they each “acknowledged that there was probably no need for the defendant to employ two National Product Managers and that our roles could be combined into a single National Product Manager role”.
The plaintiff said that in about January 2016 had a conversation with Mr Scammell, a former employee of the defendant who told him that Mr Subramonian had absorbed his role up until December 2015 at which point Mr Maizey was appointed in Sydney to perform some aspects of the plaintiff’s role. The plaintiff said Mr Scammell told him that the position had not been advertised, that it differed from the position that the plaintiff previously held and it involved visiting customers to sell portable compressors.
The plaintiff said that his role as National Product Manager for portable products was a purely product management role and it involved supporting a sales team around Australia but did not involve the direct sale of products.
The plaintiff said that he had recently been provided with a copy of the defendant’s organisational chart. The chart recorded the plaintiff’s title as “National Product Manager Portable”. He produced a copy of the chart.
The plaintiff said he had been provided with an email from Mr Funnell to Doris Tao dated 12 November 2015 titled, “Position Application-Portable Product Manager”. In the email Mr Funnell directs Ms Tao to “progress the attached Position Request”. The email refers among other matters to the fact that:

a.    the defendant was implementing a 2016 Plan which contained a “cost down requirement”
b.   the defendant was “not able to fill the National Sales & Marketing Manager role in 2016” as a result of this 2016 Plan; and
c.    in order for the employment of this new employee to not be recorded as a “head-count increase” the defendant would “remove an existing sales head to cover this position before the end of 2015” and that the employment of this new employee would therefore be “effect high grading the sales capacity”.

The plaintiff said that attached to the email was a document called “Position Description: Portable Product Manager”. The plaintiff said this is a substantially different role to the role he had performed which had been referred to by the defendant at various times as “National Product Manager”, “National Product Manager Portable” and “Senior Stationary Product Manager”.
The plaintiff said that attached to the email was a further document with the title “Hiring Approval Spreadsheet- Accudyne Asia”. He said the document identified that the defendant wished to employ a “Product Manager” in Sydney on an estimated monthly salary of US $6,500. The document mentioned that the defendant expected to hire the employee on “20 May 2014” and that the role would have “direct sales responsibility” and would “be based in Sydney”. The plaintiff said that during his employment his position title was recorded as “National Product Manager Portable” or “National Product Manager” and his employment was based in Melbourne not in Sydney. He said he did not have direct sales responsibility and his base salary was more than US $6,500 per month. The plaintiff attached a copy of the email to Ms Tao dated 12 November 2015 and the attachments referred to.
The plaintiff said he had recently been provided with a copy of an email from Mr Funnell to all staff members of the defendant dated 1 December 2015 which was entitled “READ: Staff Announcement-Sales Staff Changes” in which Mr Funnell announced that Mr Maizey would commence employment on 7 December 2015 as the new “Portable Product Manager” based in Sydney. He produced a copy of the email.
The plaintiff’s case is that his employment was terminated because the defendant no longer required his position to be performed at all or in Melbourne. He said he believes that the allegations of unsatisfactory performance were contrived in order to avoid the provision to him of the redundancy.

The plaintiff cross-examined

The plaintiff was directed to paragraph 17 of his affidavit in which he stated that the defendant had expected him to perform tasks over and above his job description. He agreed he expressed this view in the meeting with Mr Gomez and Ms Law and his comment was accurately recorded in the performance meeting report dated 24 November 2014. He said he was in “shock” that the meeting was arranged as a performance review meeting only a short time prior to what he had expected to be “just a regular catch up”. He accepted that he could rightly be expected to undertake tasks that were within his skill set even if not part of his formal position description. He said that at the time his comment was “a bit of a throwaway line”.
Ms Sweet suggested to the plaintiff that the matters set out as his objectives amounted to “mentoring” by Mr Gomez. The plaintiff disagreed. He said he was not mentored but just told what he was required to do and to achieve. I agree with the plaintiff’s characterisation of events.
The plaintiff agreed that between 24 November and 8 December 2014 he did not revert to Mr Gomez on any matter or try to contact him by phone or email in relation to any of the objectives that were set for him and against which his performance was to be assessed even though he could have done so by phone or email.
Following the plaintiff’s return from leave and at his performance review meeting on 14 January 2015 he mentioned that he had suffered a virus and possibly chronic fatigue. The plaintiff said he gave to Mr Gomez updates of activities he had undertaken.
The employer’s responses from each performance review meeting held with the plaintiff were expressed in identical language and the objectives did not alter and they did not make note of the progress the plaintiff said he was making in meeting the objectives. However, the notes made in hand by Ms Law did record the plaintiff’s responses.
The plaintiff agreed the role he performed and the role Mr Subramonian held were national roles but he did not agree they could be performed anywhere in Australia.
The plaintiff did not agree either that the role he occupied and the role occupied by Mr Subramonian were “highly specialised” and require a deep knowledge of the compressor industry. It was suggested to the plaintiff that Mr Subramonian had no expertise in specialised compressors. The plaintiff said that as far as he was concerned, “a compressor is a compressor and he [Mr Subramonian] has been in the industry for 15 years and has had that exposure, based on what he has told me”.
The plaintiff was directed to the statement by Ms Law in her affidavit that at the 25 February 2015 meeting he was given opportunity to express how he was progressing, however, he said, “No, not true.”
The plaintiff was questioned about his description of his role contained in his affidavit at [CB 36] and that it did not involve sales “directly” whereas the evidence of Mr Funnell at [CB 136] was otherwise. The plaintiff said that possibly there was “some limited sales involvement.” The plaintiff was directed to [CB 228] consisting of an email addressed to him dated 11 August 2014 from Mr Gomez and copied to Ms Law to the effect that he had taken on a sales role on a part time basis and was to spend 50 % of his time on an internal sales role to “assist drive top line Portable sales”. The plaintiff denied this was a sales position but instead said that it required him to be involved only in “lead generation, making phone calls and getting sale reps to follow up on his sales leads”.
The plaintiff agreed that commencing in about in or about March 2014 there had been a series of retrenchments.
The plaintiff accepted that he had never said to anyone during the period of his performance management and in particular Mr Gomez or Ms Law that he believed the process in which they were engaged was a sham despite the alleged conversation he had with Mr Subramonian that the defendant could cope with just one of them and not both.

Re examination

The plaintiff said that there had not been any previous complaints about his work performance over the course of his employment with the defendant.
The plaintiff said he took his written response to the performance review meeting on 25 February but he did not refer to it because he was not given an opportunity. He said the tenor of the meeting was that management had made its decision and “no correspondence to be entered into” and he was given his letter of termination [CB 108].

Frederick Funnell

The defendant adduced evidence in chief from Frederick Funnell. He is the Managing Director of the defendant. His affidavit evidence addressed the following matters:

a.The plaintiff’s employment history with the defendant
b.The two “core streams” of the business, namely stationary electric

Mr Funnell said that for the defendant to remain competitive in its marketplace and to offer the level of service demanded by its customer base it requires separate product managers for the two streams of its compressor products. He deposed that the product manager roles were highly specialised and require a deep knowledge of specific industries, product range and market. As well he said that there are a number of unique features associated with the Australian market and as a result the defendant is unable to rely on “off-shore support of the wider Sullair Group” for undertaking these necessary tasks.
Mr Funnell said that both product manager positions are national roles and can be performed from any of its Australian offices.
Mr Funnell said that each year the defendant undertakes a review of the talent pool of the organisation and he is responsible to lead the review in Australia. He said that each year the goals of the review are:

a.to identify the most valuable staff and ensure they are provided with mentoring, growth projects and priority access to training opportunities; and
b.to identify low performing employees, and commence a performance management process, if required.

Mr Funnell said the talent review is completed by the leadership team comprising himself, Ms Law, the Chief Financial Officer and the Customer Care Manager. He said that in 2014, the National Sales and Marketing Manager also participated in the review.
Mr Funnell said that the 2014 review took place in February 2014 and the plaintiff was assessed as being in the “low performance” pool, with “medium potential for improvement”. He produced a copy of the document that summarised the results. He said that the result also reflected his own observations of the plaintiff’s performance at about this time. He said that at a 2014 mid-year sales conference and later in 2014 at a distributor conference the plaintiff relied heavily on templates prepared by Mr Subramonian to present market analysis as opposed to providing his own analysis. He said he failed to demonstrate any material sense of urgency in helping the sales team respond to the market challenges being faced. Mr Funnell was not challenged in relation to his observations or the conclusions he arrived at and derived from his observations.
Mr Funnell said that the plaintiff’s performance was carefully monitored and coaching was provided by his line manager, Mr Gomez. He said that no appreciable improvement was noted in the plaintiff and therefore he was put on a formal performance improvement plan which commenced on 24 November 2014. He said the process was initiated and led by Mr Gomez and Ms Law. He said he supported the decision to initiate the process. He said the overall goals of the performance improvement plan were to increase sales and for the plaintiff to provide better support to sales staff.
Mr Funnell said he did not participate in the performance management meetings as this was a function left to the individual line manager supported by Human Resources.
Mr Funnell said that there were ongoing issues with the plaintiff’s performance despite the performance management process including simplistic and unsophisticated pricing and growth strategies, “regurgitating product information from brochures and relying on the same for presentations, communicating poorly with management and peers and providing minimal coaching to sales staff”.
Mr Funnell said that in late February 2015 both Ms Law and Mr Gomez had separately told him that the plaintiff’s performance had not improved and had deteriorated.
Mr Funnell said that although some aspects that required improvement depended upon matters outside the plaintiff’s control and were dependent on “customer interest” other elements were within his control and he expected the plaintiff would have developed more sophisticated sales strategies and prepared the Marketing Plan and summer campaign material to a standard expected from an experienced National Product Manager. He said he had not done so.
Mr Funnell said he endorsed the termination of the plaintiff’s employment.
Mr Funnell’s affidavit evidence also addressed the question of whether a need existed in the defendant for a National Product Manager at the time of and following the plaintiff’s termination of employment. He deposed that because of the importance of the portable compressor product line to the defendant’s business when the plaintiff’s employment was terminated it was necessary for the National Product Manager role to continue to be performed and for a replacement National Product Manager to be recruited. He pointed out that the defendant’s internal working document described as “termination advice” and signed off by Mr Gomez, included the question “whether a replacement was required” and the answer recorded was “Yes” [CB 166].
Mr Funnell said that after the plaintiff’s termination, portable product related questions were directed temporarily to Mr Subramonian. Mr Funnell said it was Mr Subramonian’s responsibility to respond to customer calls that would otherwise have been received by the plaintiff. He said however that given that Mr Subramonian does not have expertise in portable compressors, he was required to direct technical questions regarding the portable compressors to application engineers within the defendant.
Mr Funnell said that due to the different expertise required by the two positions, as well as the workload required in the execution of them, the defendant never pursued a restructure of its product management services to create a single National Product Manager for both the portable and stationary product lines.
Mr Funnell said that it was a difficult exercise to recruit a suitable candidate for the position of National Product Manager. He said that in about October 2015 he was approached by Mr Maizey. He said that Mr Maizey had over 27 years of experience in the Hire and Portable compressor industries, and held a position of Product Manager Oceania (Portable) at Doosan International (one of the defendant’s competitors). He said the position Mr Maizey had held was the equivalent to the National Product Manager role that the plaintiff occupied. He said that following interviews and a recommendation from the defendant’s American Vice President of Sales, he was satisfied that Mr Maizey possess the requisite skill set an experience for the National Product Manager role. Mr Funnell said it was necessary for him to obtain the approval for the hire of Mr Maizey which he did from the HR Director Asia for Accudyne Industries, and as part of the approval process, he included the position description for the job. Mr Funnell said although there was a change in the title of the role, the Portable Product Manager taken up by Mr Maizey had the same status and responsibility as the National Product Manager role held by the plaintiff.
Mr Funnell’s evidence included that in the period 1 July 2014 to 11 March 2016 the defendant made 35 positions redundant and paid out redundancy entitlements pursuant to its policy exceeding $2 million. He said the positions made redundant were equivalent to and more senior than the plaintiff such as the IT Manager, Engineering Manager, Operations Manager and Executive HR Manager.
Mr Funnell’s affidavit evidence responded to the matters raised by the plaintiff in reference to his emails to Ms Tao. Mr Funnell said [CB 137 paragraph 57]:

“A requirement for management to provide “cost down” opportunities is a common part of business across all industries. Given my prior sales experience in the mining, chemicals and aviation industries, I decided to combine the Managing Director and National Sales & Marketing manager roles. In the email, I noted that a head count removal was not required. This was because Mr Brandon Scammell resigned in December to take up a position with one of our competitors. We are always looking to refill positions with high calibre staff as this “high grading” provides a competitive edge”.

Cross examination of Mr Funnell

Mr Funnell testified that Mr Gomez is no longer employed by the defendant. However he said that he made inquiries to see if he was willing to give evidence but that he had expressed considerable anxiety at the prospect of doing so because of his concern about “the legal process” and any “financial liability” he may suffer and so, Mr Funnell said, “I determined that we would not press him to testify”.
Mr Gunst in the course of final address submitted that Mr Gomez’s apparent expressed reluctance to testify and concern about potential liability evidenced a “consciousness of guilt”. I will address that submission later in my reasons.
Mr Funnell said that the defendant has a range of competitors but and that “we are small globally among our three principal competitors in the market”.
Mr Funnell agreed that there was an interregnum for several months during which the plaintiff reported directly to him. He said he had received customer feedback that caused him concern about the plaintiff but he did not raise them with the plaintiff but instead with the plaintiff’s line managers.
Mr Funnell agreed that the market demand for portable compressors declined particularly from 2012.
Mr Funnell agreed that as National Sales & Marketing Manager Mr Gomez had a sales and costs budgets to meet as part of his own key performance indicators and he acknowledged that if sales fell and costs rose, Mr Gomez’s own security of tenure in employment may also have been called into question.
Mr Funell denied that Mr Gomez had ever suggested to him that the plaintiff’s employment should be terminated in order to improve his division’s “bottom line”.
Mr Funnell said he was aware that Ms Law had written to Mr Gomez warning of a danger of a perception of a rushed performance review time line. He said he was aware of the 3 month period that had elapsed since the review began and he said he was also aware of the plaintiff’s absences from work during the timeframe in question. He said that he was also “aware of the plaintiff’s deteriorating performance”. He said that ultimately a decision needed to be taken and “that is what I did”.
Mr Funnell agreed that after the plaintiff’s termination in February 2014 Mr Subramonian was directed to take phone calls and emails that would otherwise have been received by the plaintiff in connection with portable compressors. He said that the plaintiff’s phone number was diverted to Mr Subramonian. Mr Funnell said that Mr Subramonian was to on forward queries to the Regional Sales Manager in the geographic area from where the query arose and because Mr Subramonian lacked the plaintiff’s knowledge, technical inquiries regarding portable compressors were directed to one of two “application engineers” employed by the defendant.

Mr Funnell agreed with Mr Gunst that after the plaintiff’s termination no replacement for his position was sought by the defendant by any of the “usual means”. However, Mr Funnell said that “we were keeping an eye out in the market for an appropriate skill sets”. He agreed that no advertisement was placed for a National Product Manager for portable diesel compressors and no recruitment agency was engaged. However, Mr Funnell said that Mr Lance Maizey “approached us in late 2015” and he commenced employment with the defendant in December 2015 in the position of “Portable Product Manager” and remains employed in that role.
Mr Funnell’s evidence is that Mr Maizey occupies the same position the plaintiff did. Mr Funnell agreed that Mr Subramonian is still National Stationary Product Manager whereas the defendant has not styled Mr Maizey as “National Portable Product Manager”.
Mr Funnell said that the defendant operates a Global Human Resources system in which all positions within the organisation are identified and that the plaintiff’s position remained “open” and it was into that position that Mr Maizey was hired.
Mr Gunst suggested to Mr Funnell that what in fact occurred was that the suite was duties that had distinguished the plaintiff’s position was dispersed, initially to Mr Subramonian, and then to subordinate staff including technicians and thus it had not required the work performed by the plaintiff to be performed any longer. Mr Funnell said that was not the case.
Mr Funnell was re-examined. He was directed to [CB 35] (paragraph 44 of the plaintiff’s affidavit) and the conversation allegedly had with Mr Subramonian to the effect “there was probably no need for the Defendant to employ two national Product Managers”. Mr Funnell said that there is a deep level of knowledge required in each category of manager and this extends to a detailed understanding of the business and that Mr Subramonian would not have been in a position to have made the comments and certainly not on an informed basis and, furthermore, the statement attributed to Mr Subramonian did not reflect the defendant’s plans.
Mr Funnell said that Mr Gomez and Ms Law sought his endorsement to terminate the plaintiff’s employment and in the course of meting they brought some of the source material with them that evidenced the concerns that were held. These documents consisted of the records of the previous performance reviews. Mr Funnell said he reviewed them and satisfied himself about the decision for which his approval was sought. He said as well that during the year he had observed the plaintiff and how he engaged in meetings which he did not regard as of a standard suitable for his position. Mr Funnell said that in his opinion, this together with a lack of appreciable improvement identified in the plaintiff, satisfied him of the correctness of the decision to terminate his employment.
As far as recruitment of a replacement for the plaintiff was concerned, Mr Funnell said that the needs required to fulfil such a position does not lend itself to simply placing an advertisement on SEEK or putting up a notice in the “tea room” but that instead one keeps an eye out and “fortunately”, he said Mr Maizey’s name came up.
At the conclusion of Mr Funnell’s evidence, Ms Sweet made the concession on behalf of the defendant that in the event I was satisfied that the plaintiff was made redundant then the defendant’s redundancy policy would apply. This was a helpful concession.

Sonya Law

The defendant adduced evidence from Ms Sonya Law who adopted her affidavit (CB176 – 189) as her evidence in chief together with a series of documents exhibited to the same.
Ms Law is the Human Resources Manager of the defendant and had held this position since October 2013. She said hers was a small department and consisted of just one other employee. She said she had responsibility for the maintenance of personnel records and the maintenance of company policies together with the provision of advice to the defendant.
Ms Law said that a formal performance management process is only instigated “as a measure of last resort”. She said that prior to commencing the process she is responsible for educating the appropriate line manager about the framework for undertaking performance management, including the need for procedural fairness and for setting specific, measurable and achievable goals and to assist a line manager with the planning and preparation for performance meetings. She said her practice was to attend these meetings and take notes by hand after which they are typed and she provides a copy to the line manager for review to review and then a copy to the employee concerned. She adopted her usual practice in connection with the plaintiff.
Ms Law said that Mr Gomez commenced with the defendant in the position of National Sales and Marketing Manager in January 2014. She said he became the plaintiff’s line manager. She said that shortly after Mr Gomez commenced employment with the defendant he raised with her informally her concerns about the plaintiff’s performance. The matters of concerns included matters such as the plaintiff’s level of performance not being what he was used to from his previous employer and that there was a difference in the quality of work the plaintiff produced from what he expected from a person in the plaintiff’s position. Ms Law said Mr Gomez identified the plaintiff’s “lack of preparation for meetings”. She said she advised Mr Gomez to be patient before undertaking the commencement of a formal performance management process. She said she suggested to Mr Gomez that he should consider that he had come to the defendant from a larger organisation and that it might be necessary to adjust his expectations about the performance of any particular team member.
Ms Law said that in February 2014 the defendant commenced its annual talent review. She said that the outcome of the talent review was that plaintiff was ranked “low” for performance, and “medium” for capacity to improve. Matters raised during the talent review and that contributed to the plaintiff’s low ranking for performance were a failure to prepare for meetings and a lack of product knowledge. She said the feedback on these matters came from a variety of sources including Mr Funnell, Mr Gomez and members of the plaintiff’ sales team. The comments from sales teams were to the effect that the plaintiff was not assisting them to make sales as he was not responsive and did not have a sufficient knowledge of the product and was not “adding value” to assist them with increasing sales. She said the plaintiff was ranked “medium” on the potential to improve category because it was accepted that the plaintiff was a competitive individual and in an effort to allow him to improve his performance in his role. She said that after the review she told Mr Gomez to work closely with the plaintiff and to observe his performance and to find opportunities to coach him if his performance was not improving. She said that as well she advised him to hold weekly catch ups with the plaintiff and to set clear expectations of what he required of him.
Ms Law said that over the next several months Mr Gomez reported to her his increasing frustration with the plaintiff. She said that he felt that the plaintiff’s performance was contributing to a lack of sales within the division and he was holding the sales team back. She said that Mr Gomez told her that he continued to receive feedback from the sales team that they did not feel supported by the plaintiff.
Ms Law said she assisted Mr Gomez in preparing to initiate a formal performance management process.
She said that she and Mr Gomez held the first performance management meeting with the plaintiff on 24 November 2014 and he was accompanied by a support person. She said Mr Gomez attended with sales figures, extensive notes and specific examples of a lack of performance by the plaintiff and set goals for him to achieve. Ms Law said that Mr Gomez gave the plaintiff specific feedback. Ms Law said from her perspective the meeting had the air of a coaching session. Whilst that may have been Ms Law’s opinion the fact of the matter was that the meeting was convened as and proceeded as a performance management meeting.
Ms Law said that the plaintiff “did not give much” by way of response to Mr Gomez but that what he did say did not address the issues that had been raised with him. She said that instead he reverted to relying on his position description and indicating that he was being asked to perform tasks that were not contained within it.
Ms Law said that she and Mr Gomez stepped out to discuss matters. She said they both decided that the plaintiff should be issued with a warning about his lack of performance. She said a further meeting was then scheduled for 8 December 2014. She said that although it was not expected that the plaintiff would have met all of his set goals by then nonetheless the time frame was sufficient to provide an opportunity to assess his progress.
Ms Law said she took handwritten notes during the meeting which she typed immediately following its conclusion. She said she provided an electronic copy to Mr Gomez for his review and delivered them by hand to the plaintiff’s office.
Ms Law exhibited the written warning dated 25 November 2014 which in part read:

“This letter is an official working regarding your performance and if your performance should not improve this may result in termination of your employment.
We have agreed to meet again on 8 December 2014 to review your progress in this matter.”

On 26 November 2014 Ms Law sent an email to Mr Gomez and attach the notes of the performance management meeting together with the warning issued to the plaintiff. She referred in part to her email which included the controversial reference to an apprehended risk that the timeframe might be perceived as insufficient in the event the matter progressed to the plaintiff’s termination. It read, so far as relevant:

“Please review Warning letter attached in paragraph 3 it reads “may result in termination of your employment” as to follow due process there should be one more Final Warning Letter after 8/12/2014 meeting and subsequent review date say 15/12/2014 and is still not performing then Termination Letter that day. Just so you are aware we may not have provided reasonable amount of time between meetings but think we have agreed to take this risk”.

Ms Law said her concerns expressed in her email was an acknowledgement on her part as a human resources expert, that in the event the plaintiff’s employment resulted in a termination, the timeframe may be found insufficient in an industrial fairness context to have allowed for a valid assessment to be made of the plaintiff’s improvement. Ms Law said however that Mr Gomez was very concerned by the lack of sales within the plaintiff’s team and of the complaints of a lack of support from his sales team. Ms Law said that based on these considerations it was decided to “take the risk” of assessing the plaintiff’s work performance on a relatively tight timeframe.
Ms Law said that on 5 December 2014 she sent an email to Mr Gomez in preparation for the management meeting scheduled on 8 December 2014. She said the second performance management meeting occurred as scheduled and she attended it together with Mr Gomez and the plaintiff attended with his support person. She said that she and Mr Gomez reviewed the plaintiff’s progress of the goals set at the first meeting and gave the plaintiff an opportunity to explain what he had achieved. Ms Law said the plaintiff’s responses were again unsatisfactory. The plaintiff complained that it was unclear to him what was expected of him and as well he endeavoured to excuse a lack of progress in achieving the set goals by citing an absence of Mr Gomez who had been in Perth on business for a period of a week.
Ms Law said that Mr Gomez had travelled to Perth for a portion of the time since the first performance management meeting and although he was not physically present at the defendant’s premises nonetheless he was accessible by telephone an email and there was nothing to indicate that the plaintiff had attempted to contact Mr Gomez by such means to seek any clarification of the tasks he had been set but that instead he appeared content to wait until the subsequent meeting. Ms Law said this indicated to her that the plaintiff had failed to engage with the performance management process. She said that again she and Mr Gomez stepped out of the meeting and conferred. She said it was decided that based on the inadequacy of the plaintiff’s responses and the unsatisfactory nature of progress made on the goals set for him that a second written warning would be issued to him. She said they returned to the meeting room and advised the plaintiff that he would be issued with a warning and that the defendant would continue with the performance management process. A third performance management session was scheduled for 15 December 2014. Again Ms Law produced her typed notes of the meeting. She said a written warning letter was hand-delivered to the plaintiff’s office on 8 December 2014 and she produced a copy of the official final warning.
Ms Law deposed that the meeting scheduled for 15 December 2014 did not occur as the plaintiff was on a period of personal leave. Other absences also intervened.
Ms Law said that she and Mr Gomez subsequently met with the plaintiff and his support person on 14 January 2015. She said that during the meeting the plaintiff said that he had been unwell and may be suffering from chronic fatigue syndrome. She said she offered the plaintiff support and told him about the defendant’s employee assistance program which he could access at any time. She said the plaintiff told her that he was seeing his own counsellor as well as his own doctor. She said that she and Mr Gomez stopped the meeting to confer and consider the new information concerning the plaintiff’s health. She said she and Mr Gomez determined that due to the plaintiff’s ill-health, the substantial period of leave taken since the second performance meeting on 8 December 2014, and an impending period of annual leave that it was appropriate to provide him with a further period of a month to achieve the goals that had been set for him on 24 November 2014. Ms Law said she took notes of the meeting and she produced a copy of them and they reflect the matters of evidence she recounted. She said the next performance meeting was scheduled for 18 February 2015 but it came to be postponed to 25 February 2015.
Ms Law said that Mr Funnell asked her and Mr Gomez to keep him updated about the performance process involving the plaintiff. She said she and Mr Gomez had separate weekly meetings with Mr Funnell. Ms Law said that on 24 February 2015 she and Mr Gomez met with Mr Funnell in relation to the plaintiff. She said she told Mr Funnell that it was likely the termination of employment would be the outcome of the meeting to be held the next day but that “you never know, Daryl could say something to turn it around”. Ms Law could not recall Mr Funnell’s response. She said a draft termination letter was typed for Mr Funnell’s consideration and review.
On 25 February 2015 she and Mr Gomez met with the plaintiff and his support person. She said the meeting commenced with the plaintiff having been provided an opportunity to explain his progress towards the goals set for him. Ms Law could not recall any specific response from the plaintiff. She said that given nothing new had been provided by the plaintiff Mr Gomez advised the plaintiff that a decision had been made to terminate his employment with immediate effect. The letter of termination includes as follows:

“The company has decided to terminate your employment effective this 25^th day of February 2015. Over the past months it has become apparent you are unable to effectively discharge the responsibilities of your role.”

Ms Law said as a result of the termination of the plaintiff’s employment the defendant needed to put in place an interim measure to ensure that enquiries that would have come to the attention of the plaintiff whether from customers or sale staff continued to be dealt with until a replacement for him was found. Mr Subramonian was asked to take on the responsibility of dealing with phone calls and emails. Ms Law said that had it been the defendant’s intention to merge the roles of National Product Manager and Stationery Product Manager, Mr Subramonian’s position description would have been changed and it did not and his remuneration would have been altered and it did not because the roles had not merged.
As to a replacement for the plaintiff Ms Law said the defendant faced substantial difficulties in the recruitment of a replacement. She deposed that in order for consideration a candidate required an intimate knowledge of the mechanics, engineering and specifications not just of the defendant’s portable compressors but of those of its competitors. She said that persons with the specialised knowledge were few and far between. As well she said the defendant’s remuneration packages were not as market competitive as some of its larger competitors and also the defendant was not as resource rich or equipped with as big a sales teams as some others in the market making recruitment problematic.
In regard to the plaintiff’s evidence that Mr Maizey was employed to “a substantially different role to the role that I performed” because the role was being performed from Sydney, and Mr Maizey he was to have “direct sales responsibility” and was paid a lower base salary, Ms Law said that the plaintiff’s conclusions were incorrect. She said that Mr Maizey’s role is not substantially different to the role the plaintiff held. She said that:

a.the position is a national role and always has been, and is able to be performed from a number of possible locations around Australia, including Sydney or, as was the case with the plaintiff, from Melbourne;
b.that the plaintiff did have direct sales responsibility and that from approximately 11 August 2014 onwards he had agreed to take on an Inside Sales Representative role on a part-time basis. Ms Law attached the requisite email to the modified position description reflecting the same;
c.the salary indicated on the higher request form document identified by the plaintiff was an error and she produced a copy of the contract of employment between the defendant and Mr Maizey which indicates his salary as $110,000 annually which equates to approximately $9,150 per month.

Ms Law’s affidavit evidence identified the defendant’s organisational chart in response to the exhibit produced by the plaintiff to his affidavit. As to the organisation chart dated 30 January 2015 which labels the plaintiff’s role as “National Product Manager Portable,” Ms Law says there was no significance to the different name given to the role performed by Mr Maizey. She said the organisational chart is prepared to reflect employee “headcount” and the organisational chart provides the structure of the business and is based on who is currently employed.
Ms Law said that the defendant utilises a Human Resources Information System, Workday in which the defendant stores information about positions that are “open” and need to be filled. In her oral evidence Ms Law said that the plaintiff’s position remained “open” within that Human Resources management tool.

Cross-examination of Ms Law

Ms Law said the round of redundancies that occurred in the defendant throughout Australia in the course of 2014 equated to approximately one third of the workforce. She said the changes were wrought by market changes including a fall in demand for compressors and an increased move to off shore production.
Ms Law said she knew the plaintiff outside work through a mutual interest and participation in competition in triathlons.

Ms Law agreed that her remit included maintaining and securing records of disciplinary issues and that prior to 2014 the plaintiff’s file contains no record for performance related matters.
Ms Law said that Mr Subramonian was presently employed as Stationary Product Manager which is the title of the position he has held since commencing his employment with the defendant some time in 2012. She said that both the plaintiff and Mr Subramonian’s positions had national responsibilities due to the structure of the defendant’s business.
Ms Law said that Mr Gomez commenced with the defendant in 2014 holding the position of National Sales and Marketing Manager. She accepted that if sales were down in November 2014 Mr Gomez might have had a desire to cut costs through a reduction of head count.
Ms Law was asked about her comments of the possible insufficiency of the timetable imposed on the plaintiff and whether it afforded him fairness. It was the plaintiff’s case in part that he was for the “high jump” regardless of his performance and improvement and that the fact of outcome being predetermined was reflected in her email advice about the dangers of an insufficient period of time in which to satisfy the tasks he was set. Ms Law denied the implication attributed to her based on her email to Mr Gomez.
I am satisfied of Ms Law’s account of events given in her evidence. I found that she presented as a knowledgeable and contentious officer of the defendant who appropriately monitored the progress of the plaintiff throughout the performance and disciplinary process. I am not satisfied that so far as she expressed a concern about the time line for the plaintiff to be assessed against outcomes that this amounted to evidence of a pre-determined mind. In fact her email advice contemplated the provision of a termination letter to the plaintiff “if still not performing”. Her language expressly foreshadowed the provision to the plaintiff of a termination letter in the event that his performance had not improved. This open minded language used by her was reflected in her comments to Mr Funnell when his approval for a termination was sought, and she said “you never know, Daryl could say something to turn it around”.
Ms Law said the defendant did seek to a replacement for the plaintiff although she conceded no external or internal advertising was put in place. No external consultant was retained. Ms Law said global HR System was accessible to a top echelon group throughout the defendant in Australia and to a limited extent overseas.
Ms Law said she had always been of the opinion that a replacement for the plaintiff would be found by recruitment through networking among peers which she estimated accounted for about 70 5 % of the successful recruitment of employees of the plaintiff’s level. She said Mr Maizey had approached the defendant via this word of mouth method.

The Meaning of Redundancy

In Fosters v Wing [2005] VSCA 322 the Court of Appeal dealt with an appeal from a judgment in the County Court of Victoria in which the trial judge found that the plaintiff's employment with the defendant, Foster's Group Ltd ("Foster's"), had been terminated because his position as General Manager, Shanghai Foster's Brewing Limited ("SFBL") had become redundant. The defendant appealed against this finding. The plaintiff, Mr Kou, cross-appealed against the trial judge's calculation of the amount of the redundancy payment on the basis that the plaintiff's years of service with Foster's and entities related to Foster's prior to the commencement of his employment under his contract should have been taken into account. The Court of Appeal said as follows:[5]

[5] Citations omitted

[33] A clear guide to the meaning of redundancy is to be found in the judgment of the Full Court of the Supreme Court of South Australia in R v Industrial Commission of South Australia; ex parte Adelaide Milk Supply Co-operative Ltd.¹ In that case Bray CJ said that:
... the concept of redundancy in the context we are discussing seems to be simply this, that a job becomes redundant when the employer no longer desires to have it performed by anyone. 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.

Bright J expressed a similar view:
The word 'redundant' does not occur in the Act. In its industrial sense it is not defined in the Oxford Dictionary. The application which I have already set out attempts a definition for the purpose of the proposed award. A consideration of the cases leads me to think that the question of the redundancy of an employee is linked to the question of the continued utility of the job which he is performing. In other words it does not relate to the personal competence of the employee in the job which he is performing. If I am right in this, then in its widest form the concept of redundancy connotes that an employee becomes redundant whenever (and for whatever reason) his employer no longer desires to have performed the job which that employee was doing.

[34] The meaning of redundancy was recently considered by the Full Court of the Federal Court of Australia in Dibb v Commissioner of Taxation. That case arose out of a private ruling by the Commissioner concerning the tax liability of Mr Dibb in respect of a lump sum settlement received by him following the termination of his employment as a district manager with a finance company. One of the issues was whether Mr Dibb's dismissal was by reason of his bona fide redundancy within the meaning of s 27F of the Income Tax Assessment Act 1936 (Cwlth). In a joint judgment, Spender, Dowsett and Allsop JJ referred to Adelaide Milk and continued:
34 We note also the observations of Ryan J in Jones v Department of Energy and Minerals (1995) 60 IR 304 at 308 as follows:
However, it is within the employer's prerogative to rearrange 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. It is inappropriate now to attempt an exhaustive description of the methods by which a reorganisation of that kind may be achieved. One illustration of it occurs where the duties of a single, full-time, employee are redistributed to several part-time employees. 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.
35 Similarly in Quality Bakers of Australia Ltd v Goulding (1995) 60 IR 327, Beazley J said at 332-333:
There was no dispute that the 'operational requirements' of a business may include redundancy. A redundancy will arise where an employer has labour in excess of the requirements of the business; where the employer no longer wishes to have a particular job performed.; or where the employer wishes to amalgamate jobs ... As was said in Bunnetts' case (Bunnett v Henderson's Federal Spring Works Pty Ltd [1989] AILR 354:
Organisational restructuring may result in a position being abolished and the functions or some of them being given to another or split amongst others.

36 The Macquarie Dictionary (3rd ed, 1997) now relevantly defines 'redundant' as meaning:
... denoting or relating to an employee who is or becomes superfluous to the needs of the employer ...

37 In the Oxford English Dictionary (2nd ed, 1991) the word is defined relevantly as:
The condition of having more staff in an organisation than is necessary. Hence, the state or fact of losing a job because there is no further work to be done; a case of unemployment due to reorganisation, mechanization, loss of orders, etc.

[35] Their Honours contrasted the position adopted by the Commissioner and the primary judge with the approach espoused by the South Australian Full Court in Adelaide Milk, which necessitated "identification of the 'jobs' in question".⁶ Their Honours continued:
41 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'. We accept that view. Ryan J then observed that where such duties are reassigned, the question is whether any function or duty remains to be performed by the employee. We do not understand his Honour to have meant that if any aspect of the employee's duties is still to be performed by somebody, he or she cannot be redundant. His Honour's meaning appears clearly from the following paragraphs at 308-309:
In this case, the respondent led evidence that of the major changes which were made to the Department between September 1993 and late 1994. According to Mr Downie, the applicant's former position as Director, Mining Inspectorate, was abolished and the duties attached to it were combined with those of the previous Director, Environmental Management. In addition to a number of other, newly-created functions, those pre-existing duties were to be performed by a newly created General Manager, Mineral Operations. Thus it is clear that although some of the tasks previously assigned to Mr Jones still had to be carried out, the employer's rearrangement of its operational structure had the consequence that they be combined with other functions and performed by the holder of a new, more generally-oriented position.
On this basis, it appears that Mr Jones' former position was rendered 'generally redundant'. When it became apparent that he could not be redeployed, Mr Jones was found to be surplus to the respondent's personnel needs. This amounted to a reason for dismissal which was clearly based on his employer's operational requirements.
42 As Beazley J observed in Quality Bakers:
A redundancy will arise where an employer has labour in excess of the requirements of the business; where the employer no longer wishes to have a particular job performed; or where the employer wishes to amalgamate jobs...
43 The difficulty in this case has been caused by the aphorism which appears in both paras 12 and 42 of TD 94/12 to the effect that the job, not the employee, becomes redundant. However s 27F speaks of the 'bona fide redundancy of the taxpayer'. 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 lead 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. If, in good faith, the employer:
o          has reallocated duties;
o          considers that the employee is not suitable to perform any available job, defined by reference to those reallocated duties, existing after the re-allocation; and
o          for that reason, dismisses the employee.
then, for the purposes of s 27F, the employee is dismissed by reason of his or her bona fide redundancy. In the above discussion we have used the word 'available' as meaning 'vacant', and the word 'suitable' as meaning 'within the employee's capacity'.

[36] It seems to me that the approach followed in Adelaide Milk has been reflected in the wording of Foster's policy. 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.

The Defendant’s Submissions

The defendant referred to the decision of Vickery J in Hodgson v Amcor [2012] VSC in which His Honour adopted the reasoning expressed by the Court of Appeal in Foster’s Group v Wing. His Honour reconciled the following propositions set out in Whittaker v Unisys Pty Ltd 26 VR 668 with the reasoning in Foster’s Group as follows:

“subject to any qualification or re-statement found in the relevant contract of employment or any applicable statute, the common law concept of ‘redundancy’ comes down to the following propositions:
(a)A job becomes redundant when the job of the employee ceases to exist because the employer, for whatever reason, whether by reason of reorganisation, mechanisation, change in demand or other reason, no longer desires to have it performed by anyone;[6]
(b)This can occur either when the role no longer exists or the duties have so changed that for all practical purposes the original role no longer exists;
(c)However, redundancy is not limited to the circumstance where the employer, no longer desires to have the work previously performed by the terminated employee done by anyone;
(d)A redundancy may also arise upon the redistribution of job functions, where the duties performed by an employee are redistributed among other employees. In this case the employer still requires the duties to be performed, but the reorganisation may give rise to a redundancy. In this event although the duties remain to be performed ‘for all practical purposes the original role no longer exists’ because the duties are divided and assigned amongst others. In such a case the question is whether any function or duty remains to be performed by the employee. A redundancy will occur if, after the reorganisation, the employee in question is left with no duties to discharge; and
(e)Redundancy will not arise where the termination of employment is carried out solely because of any personal act or default of the employee terminated or for any consideration peculiar to that employee”.
[6] Underlinings added

Ms Sweet submitted that the sole reason for the termination of the plaintiff’s performance was performance and as such a redundancy will not arise in accordance with principle (e) expressed by Vickery J. Ms Sweet referred to the letter of termination [CB 226] that “[O]ver the past months it has become apparent you are unable to effectively discharge the responsibilities of your role”.
Mr Gunst submitted that what occurred after the plaintiff’s termination was instructive in characterising what brought the plaintiff’s employment to an end. In my opinion, caution needs to be exercised in attributing actions taken by an employer after a termination of employment on the ground of performance as falling outside the protection identified by Vickery J in (e) in an effort to establish that a redundancy that fits into categories (a), (b) or (d) when as here the plaintiff is alleging that the performance related reasons existing at the date of termination were a charade.
The plaintiff’s evidence was that Mr Subramonian spoke with him in May 2015 and their conversation dealt with two issues: the first was that Mr Subramonian said that “he had been directed to assume my responsibilities for portable products in addition to his own responsibilities for stationary products”. Assuming the conversation occurred what does it amount to? From the plaintiff’s point of view of course it confirms his opinion that his termination was caused not solely, if at all, because of performance but because the defendant wanted to reallocate the duties he had previously performed in his role to Mr Subramonian. It remained unclear from the plaintiff’s evidence when the “direction” was given to Mr Subramonian and by whom, both matters Mr Gunst argued could have been clarified by Mr Subramonian had he been called as a witness. The second matter of the alleged conversation the plaintiff had with Mr Subramonian was that, “He also advised that there appeared to be no efforts being made by the Defendant to employ anyone in my position”. As I pointed out to Mr Gunst, I did not think that Mr Subramonian’s unadorned expression of opinion of the extent of the efforts made by the defendant was relevant or that I could infer there were operational matters to which he had been privy. Mr Subramonian was not an operational decision maker. Thus in my view the relevant contention arising from the alleged conversation with Mr Subramonian is whether it is evidence that the defendant decided to redistribute the plaintiff’s duties such that through no fault of the plaintiff his role no longer existed or the duties he had performed had so changed that for all practical purposes the original role no longer exists. I am not satisfied of that fact.
In Encyclopaedia Britannica Australia Pty Ltd v Campbell [2009] NSWCA 286 the New South Wales Court of Appeal held that said that a relocation of duties following a termination as a consequence of termination does not mean that a redundancy has occurred where the evidence has been that the termination was for performance related reasons. The Court said:

“Nor do I think there was an ‘advent of redundancy’ simply because termination of the respondent’s employment was followed by a relocation of some of the responsibilities of the Managing Dir. On the evidence, Ms Mansoor decided to terminate the respondent’s employment solely because of dissatisfaction with his performance and not because of any intention to restructure management in Australia or to relocate the duties of the Managing Dirictor. It was in consequence of the termination decision that Ms Mansoor decided to assign Mr Feng to some of the duties previously performed by the respondent.
The subsequent reallocation of responsibilities was a consequence of the termination and could not give the termination a characteristic that it lacked at the time[7]”.
[7] Underlining added

In the current proceeding there is no evidence that any duties performed by the plaintiff were reallocated by management of the defendant to Mr Subramonian or anyone else prior to the plaintiff’s termination. The conversation attributed by the plaintiff to Mr Subramonian does not purport to say so. Ms Sweet submitted this was an additional disentitling consideration from the plaintiff’s standpoint. In any event such evidence as was adduced on this aspect of the case was limited and comprised nothing greater than after the plaintiff’s termination his phone was diverted to Mr Subramonian and emails that would have been received by the plaintiff were directed to Mr Subramonian and any technical queries to be directed to engineers in the relevant regional sales offices from which such inquires came.
In addition and, in my judgment, importantly the contemporaneous internal termination advice completed by Mr Gomez identified the necessity for the plaintiff to be replaced and the advice is inconsistent with the intention sought to be imputed to the defendant.
The evidence given that a significant volume of the defendant workforce was made redundant requires consideration. The fact of the redundancies was argued by both the plaintiff and defendant as supporting their respective contentions. The plaintiff submitted that the defendant reduced its workload by about one third and paid out approximately $2 million dollars as a consequence. The evidence did not identify nor suggest the existence of other “sham” performance contrived processes to shield one or more of the one third who were made redundant from the benefits due to them. The evidence was that persons more senior than the plaintiff had been made redundant. The plaintiff acknowledged as much. There was no logical reason advanced why the defendant would contrive a performance process to avoid the payment to the plaintiff of approximately $58,000 in February 2015 when the final count and cost of redundancies to be borne by the defendant did not conclude according to Ms Law until 11 March 2016.

Mr Funnell testified to a number of reasons why the defendant continued to require the functions of the role of National Product Manager to be performed. He was not challenged that these reasons were not genuine.
In terms of conduct that occurred after the plaintiff’s termination, I have given consideration to the fact relied on by the plaintiff that the role occupied by Mr Maizey was not filled for about 10 months following the plaintiff’s termination. However, I prefer and accept the evidence of Ms Law and Mr Funnell, that ordinary recruitment processes extending from the mundane, such as identified by Mr Gunst, of “pinning a notice up in the tea room,” to the more specialised such executive search recruitment may not be appropriate given the smallness of the market from which to recruit and the historic success that had come from of word of mouth and networking.
The plaintiff argued as well of course that the position occupied by Mr Maizey consisted of substantial differences to the position the plaintiff occupied. I agree there are differences. There are for example differences between the position description written in 2012 applicable to the plaintiff and the position description written in 2015 that was sent to Ms Tao at the time authority was being sought by Mr Funnell to employ Mr Maizey. However, I am not satisfied that the differences are of a material nature and are functionally different to the work that had been required to be performed by the plaintiff. The plaintiff identified differences that he contended were substantially different. These are:

a.That the role taken up by Mr Maizey has a direct sales responsibility whereas the role fulfilled by the plaintiff did not. I do not accept that and I am satisfied that the plaintiff did have a sales role. I accept the evidence of Mr Funnell ([CB 136-137] – affidavit paragraphs 55 and 56) that:
“[The plaintiff’s] role involved directly selling products. While he was not eligible for a sales incentive, he held a salesman number and recorded the following portable sales in the years 2012-2015:
(a)$2,484,137.55 in 2012
(b)$1,463,541.25 in 2013
(c)$559,734.40 in 2014; and
(d)$63,911.00 in 2015

Furthermore, on 11 August 2014, Mr Gomez sent an email to Mr Davis regarding his agreement to take on a part-time Internal Sales Representative role”.
b.The role occupied by Mr Maizey is performed out of Sydney whereas the role occupied by the plaintiff was based out of Melbourne. While this is a difference, it is not one that is by any means essential to the discharge of the position. Mr Funnell and Ms Law both gave evidence that the role is national and is capable of being performed out of any of the relevant offices of the defendant throughout Australia to best suit the incumbent. The plaintiff disagreed. I accept the evidence of the defendant.
c.The annual salary differential between the plaintiff in the role and Mr Maizey was advanced by the plaintiff as a relevant distinguishing difference. I do not accept this. The defendant’s uncontested evidence was that that pays have become more competitive due to the lack of growth in the industry giving employers the advantage in remuneration offerings.

I am satisfied that the identified changes relied on by the plaintiff as having been implemented after his termination are not in terms of their degree and character of sufficient substance as to persuade me on an objective finding that the defendant no longer required the work performed by the plaintiff to be performed or that it had redistributed his work by way of a reorganisation.

Plaintiff’s Submissions

As I have already mentioned, the plaintiff submitted that his employment was made redundant and Mr Gunst characterised the proceeding as a “distribution of duties” case. Mr Gunst submitted that “if you sack a person for the sole purpose of not replacing them that is a redundancy and this is what we alleged occurred in this instance”. Mr Gunst submitted that it is an objective question whether the plaintiff’s position was made redundant. I agree that the test in law is an objective test. It is the test by which I have considered the evidence.
Mr Gunst submitted that “I can assume that Subramonian’s evidence had he been called would not have assisted the defendant”.
Mr Gunst contended that the defendant made the plaintiff redundant. It was argued that the reasons “why they wanted to get rid of him related to redundancy and did not relate to performance. There was a very real reason which was the concern that sales were down and they did not replace him”.
Mr Gunst submitted that Mr Maizey is doing essentially the same role as plaintiff and he should have been produced as a witness for the defendant to say he was doing the same work.
Mr Gunst submitted that the defendant’s letter of termination to the plaintiff imports the repeated issues that were expressed in each of the plaintiff’s performance management records. In regard to his alleged failure to meet or satisfy these concerns the plaintiff said he attended with a written response but was not afforded the opportunity at the final meeting to be heard about them. The plaintiff had a support person with him at each meeting. She was not called by the plaintiff. The defendant did not seek to make anything of that failure. I prefer the evidence of Ms Law that the plaintiff was provided an opportunity to respond but did not and did not either before or at the meeting produce or speak to his response. The defendant was none the wiser at the time of the termination.
Mr Gunst relied as well on the changes to the organisation charts.

Ms Sweet said that the allegation that Mr Subramonian had been directed to assume the responsibilities for stationary products in May 2015 cannot inform the character of the decision at the time it was made in February 2015.
Ms Sweet relied on [CB 166] the “Termination Advice” that referred to a replacement being required and that was created prior to any threatened litigation.
As to the situation arising from the organisation charts that record the position previously occupied by Mr Gomez as “spare” as opposed to the plaintiff’s position on the chart having disappeared, Ms Sweet said that the charts were made several months apart and Ms Law was not interrogated over the documents and a space or a gap remained to mark the position so to speak where the position the plaintiff had occupied would sit.

Discussion of the evidence and issues

There are a series of questions that arise for consideration of the plaintiff’s claim that he was terminated for poor performance in order that the defendant could avoid an obligation that would otherwise fall to it to pay the plaintiff a redundancy entitlement. The plaintiff alleged that the defendant identified him for performance review for reasons that were not bona fide and imposed performance indicators on him that he would be unable to meet and in relation to his efforts during the period of his review, the defendant was indifferent to his progress as it was otherwise determined to terminate him for poor performance.
One of the many criticisms levelled at the defendant was that Mr Gomez was deeply concerned about the plaintiff’s lack of sales. In the written submissions relied on by the plaintiff, Mr Gunst contended that the “defendant in fact concedes that at least part of the reason for the termination of employment was not the plaintiff’s personal performance, but the decline in the market, the “lack of sales’” [Ms Law affidavit paragraph 16] and that “Mr Gomez was very concerned by the lack of sales…and the need for the business to make money and be sustainable” [Ms Law affidavit at paragraph 31]. I am unable to accept that these attributions to Ms Law evidence has the result that the plaintiff’s termination was not solely for performance related matters. It would be a remarkable thing if an exhortation by Mr Gomez to the plaintiff to increase sales was regarded as amounting to evidence of a desire on his part to make the plaintiff’s position redundant. Equally it would be difficult if a termination for non-performance or unsatisfactory performance measured against identified performance standards made known to the employee but without evidence identifying their imposition as a sham could be at risk of being characterised as a redundancy. The plaintiff was after all a senior employee of the defendant whose duties included making sales and moreover motivating a sales team to make sales in a tightening marketplace but who was not meeting these standards to the satisfaction of his employer. In any event even if such words expressed by Mr Gomez were uttered in a manner intended to resonate a concern for the defendant’s “bottom line”, it is entirely consistent with a legitimate desire on the part of the defendant for improved performance by the plaintiff, and not evidence that the defendant did not want the plaintiff’s job to any longer be performed by anyone as opposed to it no longer being performed by the plaintiff because of his unsatisfactory performance.
The plaintiff submitted that following the termination of his employment Mr Subramonian “was directed to absorb the duties previously performed by the plaintiff and did so with some assistance on technical issues from “applications engineers”. I am not satisfied that this is what occurred. It is contrary to the facts I have found that comprised the plaintiff’s position which suite of duties and functions extended well beyond answering phone calls and directing emails.
The defendant contended that the position taken up by Mr Maizey in December 2015 is the same position as the plaintiff held. The plaintiff disagreed. However, Mr Gunst submitted that even if it was the same position, it was of no value in resolving the proceeding that almost 10 months after the plaintiff’s termination the defendant may have reverted to its previous structure.
The conclusion I have arrived at is that I am not satisfied that there is any evidence that at the time the defendant decided to terminate the plaintiff’s employment it “no longer wished to have two separate positions of National Product Manager, but rather decided to amalgamate them and distribute the duties to existing employees”[8]. The plaintiff’s submission culminated with this:

“The decision to dispense with one National Product Manager position, not seek any replacement, and distribute the plaintiff’s duties to other employees for the purpose of saving costs to make the business sustainable, can be nothing other than a redundancy, unrelated to personal performance of the employee.”[9]
[8] Plaintiff’s Outline of Opening Address [paragraph 15]
[9] Plaintiff’s Outline of Opening Address [paragraph 15]

I am not satisfied that the defendant did not want to secure a replacement for the plaintiff. First, it exhibited its desire and functional need to replace the plaintiff as evidenced by the termination information advice prepared internally for the defendant by Mr Gomez. I am not willing to accept that had Mr Gomez engaged in a sham in order to improve the bottom line of the defendant that he would then proceed to nominate the need for a replacement unless that was also an exercise engaged in to hide the real reason for the plaintiff’s termination. It would also require a finding of the involvement in such a charade by Ms Law and very probably Mr Funnell. I was impressed by both these witnesses and see no basis for me to conclude that the intention identified at the date of termination of the need for the plaintiff to be replaced was not genuine. If it was an exercise in forward thinking on the part of Mr Gomez to insulate the defendant in the event of future litigation it suffers the vice that it was written prior to threatened litigation and occurred against an evidentiary backdrop in which the plaintiff had not raised the spectre that the reliance on his work performance was a sham despite apparently having foreshadowed just such a restructure in one of his discussions with Mr Subramonian prior to his termination.
It is also in my judgement unhelpful to focus on the narrow period from late 2014 to February 2015 as informing the period of increasing concern by the defendant with the plaintiff’s performance. This timeline ignores that the plaintiff had been assessed in the lower range of employees as part of the 2014 Talent Pool Review.

The absence of witnesses and Jones v Dunkel submission

Mr Gunst submitted that the defendant had failed to adduce evidence from persons whose evidence would in the ordinary course have been seen as relevant and probative of facts in issue and that the failure to do should result in an adverse inference being drawn in accordance with the principle expressed in Jones v Dunkel[10].

[10] (1959) 101 CLR 298

Jones v Dunkel stands for two propositions. The first governs drawing inferences generally. An inference is a conclusion that a fact exists based, not on direct evidence, but on the existence of some other fact or facts, made by the ordinary exercise of reason in the light of human experience[11]. The critical point made in Jones v Dunkel is that an inference can only arise “as an affirmative conclusion from the circumstances proved in evidence, that is, ‘[o]ne does not pass from the realm of conjecture into the realm of inference until some fact is found which positively suggests, that is to say provides a reason, special to the particular case under consideration, for thinking it likely that in that actual case a specific event happened or a specific state of affairs existed”’.[12] The second proposition extracted from Jones v Dunkel is that the unexplained failure of a party to give evidence, or to call someone who might properly be thought would be able to throw light on a fact in issue, confirms any inferences that may properly be drawn against that party, rendering more probable the inferences against them that are open on the evidence[13] .

[11]: G v H (1994) 181 CLR 387, at 390

[12] Jones v Dunkel at, respectively, 304 and 305; see also at 31-320, Carr v Baker (1936) 36 SR(NSW) 301 at 306-307, and Bell v Thompson (1934) 34 SR(NSW) 431 at 436-437.

[13] Jones v Dunkel at 312 and Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106 at 119

However, an unexplained failure to give evidence “is not treated as evidence of fear that it would expose an unfavourable fact, nor an assertion of the non-existence of the fact not proved”.[14] The ways in which this principle operates was explained by McKerracher J in United Group Resources Pty Ltd v Calabro (No 5) (2011) 198 FCR 514 at [74] and [75] as follows:

[14] HML v R (2008) 235 CLR 334 at [303]

Reliance on inference – the principle
Proof of any fact on the balance of probabilities can be established by circumstantial evidence (Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262 (at [90])); that is, by proof of primary, or intermediate, facts from which the court infers a further fact (Shepherd v The Queen (1990) 170 CLR 573 (at 579). The primary facts can themselves be the product of inference from other facts.
The applicants and the ABCC submit that in this case, in which the civil standard applies, ‘you need only circumstances raising a more probable inference in favour of what is alleged’ (Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 (at 5)). A fact may be proved by inference if according to common experience the fact is the more probable inference from the unexplained primary facts (Bradshaw (at 6)). Certainty is never possible, and is not required (Transport Industries Insurance Co Ltd v Longmuir [1997] 1 VR 125 (at 141)); all that is necessary is that ‘circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought’ (Bradshaw (at 5)). For the purpose of considering whether this test is met the Court must ‘consider the accumulation of the evidence’ (Chamberlain v The Queen (No 2) (1984) 153 CLR 521 (at 535)). It is appropriate ‘not only to evaluate each of the factual contentions separately but also to form an appreciation of the overall effect of the whole of the evidence’ (Clay v Clay (1999) 20 WAR 427 (at [55])), by considering ‘the weight which is to be given to the united force of all the circumstances put together’ (Belhaven and Stenton Peerage [1875] 1 App Cas 278 (at 279). The Court may draw an inference from a combination of intermediate facts, even if none of them in isolation would support the inference (Chamberlain (at 536)). It also means that:
[a] true picture is to be derived from an accumulation of detail. The overall effect of the detailed picture can sometimes be best appreciated by standing back and viewing it from a distance, making an informed, considered, qualitative appreciation of the whole. The overall effect of the detail is not necessarily the same as the sum total of the individual details.

(Longmuir (at 141)).
The overall effect can be a product of primary facts that are combined like ‘strands in a cable’ (Seltsam (at [90])).
The applicants and the ABCC submit that one circumstance that requires particular attention in this case is the product of the combination of the following facts:
(a)         The motivation of the unrepresented respondents is within their knowledge.
(b) There is no evidence that any of the unrepresented respondents ever asserted before these proceedings commenced that they had an innocent motivation for their failure to work in accordance with their rosters in January 2010. This is so notwithstanding that, if their motivation was not industrial, they had a strong incentive to bring it to their employer’s attention. Their silence on this point inevitably condemned them to lose any right to be paid for the period when they failed to work (see Div 9 of Pt 3.3 of the FW Act and s 42 of the BCII Act).
(c)         In the nature of things, it is impossible for the applicants and the ABCC to produce evidence of a ‘non-inferential nature’ of what motivated the unrepresented respondents, other than by admission.
(d)         In these proceedings, each of the unrepresented respondents has had an opportunity to deny that they had an industrial motivation, and to give evidence to explain that their motivation was not industrial.
(e)         However, none of the unrepresented respondents chose to take that opportunity (as at 20 September 2011). No reason has been given, or otherwise appears in the evidence, why they did not do so.
The applicants and the ABCC contend that this circumstance ‘is properly to be taken into account as a circumstance in favour of drawing the inference’ that the unrepresented respondents had an industrial motivation (Jones v Dunkel (1959) 101 CLR 298 (at 312) and Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106 (at 119)). The significance of this circumstance lies in the principle that evidence is to be weighed ‘according to the proof which it was in the power of one side to have produced, and in the power of the other side to have contradicted’ (Blatch v Archer (1774) 98 ER 969 (at 970)).
I accept, as submitted, that the failure of the unrepresented respondents to deny an industrial motivation, or to give an explanation of an alternative innocent motivation, operates in three related ways:
(a)It confirms any inferences that may properly be drawn against the unrepresented respondents (The Insurance Commissioner v Joyce (1948) 77 CLR 39 (at 61)), rendering more probable the inferences against them that are open on the evidence (Jones v Dunkel (at 312), Black v Tung [1953] VLR 629 (at 634)) and makes ‘the inference … less unsafe than it could otherwise possibly appear’ (May v O’Sullivan (1955) 92 CLR 654 (at 658-659))
(b)The fact that the unrepresented respondents have not denied that they were industrially motivated, or given evidence in support of such a denial, may more readily enable a court to be satisfied that they were so motivated. This may be so even if the weight of the evidence in support of industrial motivation is ‘not great’, and even if only ‘slight evidence explanatory of the circumstances might displace the inferences which may be drawn from it’ (Bradshaw (at 5)). In Parker v Paton (1941) 41 SR (NSW) 237 (at 243) reference was made to ‘comparatively slight evidence’ and in De Gioia v Darling Island Stevedoring & Lighterage Co Ltd (1941) 42 SR (NSW) 1 (at 4) to ‘very slight evidence’.

The failure of the unrepresented respondents to deny or explain facts when to do so was in their exclusive power, ‘gives a colour to the other evidence against [them]’ (Boyle v Wiseman (1855) 156 ER 598 (at 600)), ‘allows increased strength or weight to be given to primary facts favourable to [the applicants and the ABCC] and allows inferences favourable to [the applicants and the ABCC] to be more confidently drawn’ (Longmuir (at 143)).

The plaintiff submitted that it would have expected the defendant to have produced the following persons to give evidence:

a.Mr Gomez
b.Mr Subraonian
c.Mr Maizey

In order to understand the basis for the plaintiff’s submission it is important to identify the relevance he sought to attribute to each of them[15].

a.Mr Gomez was of course a major participant in the process that concluded with the decision to terminate the plaintiff’s employment. He was for all relevant purposes the plaintiff’s boss. It was Mr Gomez who initially marked the plaintiff as requiring attention in regard to his work performance. It was Mr Gomez who initiated the performance management process of the plaintiff. It was Mr Gomez who set the objectives for the plaintiff. It was Mr Gomez who expressed to Ms Law his dissatisfaction with the plaintiff’s sales performance and it was Mr Gomez who expressed his concern about the decline in sales in a declining market;
b.Mr Subramonian was the employee who the plaintiff attributed a conversation to in or around May 2015 (about 3 months after the plaintiff’s employment had been terminated) in which he told the plaintiff that “he had been directed to assume the plaintiff’s responsibilities for portable products in addition to his own responsibilities for stationary products. He also advised that there appeared to be no efforts being made by the Defendant to employ anyone in my position”; and
c.Mr Lance Maizey, is the defendant says, the incumbent occupying the position previously held by the plaintiff and commenced with the defendant in December 2015 and carries out his employment in Sydney.
[15] No submission was pursued in regard to another former employee Mr Scammell

Mr Gomez is no longer employed by the defendant. He was not under subpoena. Mr Funnell said, as I noted earlier in my reasons, that Mr Gomez was reluctant to attend the hearing. Mr Gunst contended that the apparent reluctance on his part to give evidence as expressed to Mr Funnell in conversation was evidence of a “consciousness of guilt”. As Winneke P pointed out in R v Nguyen (2001) 118 A Crim R 479, the probative strength of post-offence conduct will depend on many factors including the circumstances in which the conduct occurred and the issue in proof of which the evidence is tendered. The defendant argued that it was not necessary for it to have adduced evidence from Mr Gomez because the decision to authorise the termination resided with Mr Funnell. Therefore, whereas Mr Gomez might have been a relevant witness if the fairness of the plaintiff’s termination was in issue, or if the procedure adopted by Mr Gomez was attendant with procedural fairness, it was not his decision to decide the defendant’s organisational structures and hence make him a relevant witness or, more particularly by reason of his absence, to draw a Jones v Dunkel inference. I agree with the defendant’s analysis as regards Mr Gomez.
Mr Maizey’s absence to be called as a witness by the defendant falls to be considered in yet another light. He did not take up employment with the defendant until December 2015. Mr Gunst whilst not conceding the point, appreciated that Mr Maizey’s evidence may not be probative of whether the plaintiff was made redundant. This was reflected in part of the plaintiff’s written submission in which it was argued that even if Mr Maizey came on board many months after the plaintiff’s termination and was performing the same or substantially very similar work to that undertaken by the plaintiff it would not affect its submission that a redundancy existed at the date of termination and that any subsequent decision by the employer to revert to the previous structure could not ex post facto clothe the decision with authenticity. I agree with the reasoning by Mr Gunst and hence I am not persuaded that there is occasion to draw a Jones v Dunkel inference for the failure to adduce evidence from Mr Maizey.
Mr Subramonian was the subject of considerable mention by both the plaintiff and defendant in the course of the proceeding. The plaintiff relies on the conversation he claims he had with Mr Subramonian several months after his employment had been terminated. The contents of their alleged conversation falls to be considered in a different light from that of Mr Gomez not giving evidence. According to the plaintiff, Mr Subramonian spoke with him in May 2015 and their conversation dealt with two issues. The first part of the conversation was that Mr Subramonian said that “he had been directed to assume my responsibilities for portable products in addition to his own responsibilities for stationary products”. Assuming the conversation occurred what does it amount to? From the plaintiff’s point of view of course it confirms his opinion that his termination was caused not solely, if at all, because of performance but because the defendant wanted to reallocate the duties he had previously performed in his role with those of Mr Subramonian. It was not explained in the plaintiff’s evidence when the “direction” was given to Mr Subramonian and by whom. The second part of the alleged conversation the plaintiff had with Mr Subramonian was that, “He also advised that there appeared to be no efforts being made by the Defendant to employ anyone in my position”. I have already said that Mr Subramonian was not qualified to give an opinion of the extent of the efforts of the defendant.
Does the absence of the defendant to adduce evidence from Mr Subramonian result in an adverse finding? As evident from the various authorities that I have referred to, the failure of a party to call a witness does not necessarily give rise to an adverse inference being drawn. Such an inference is available only if evidence otherwise provides a basis on which that unfavourable inference can be drawn and an unfavourable inference cannot be drawn solely on the basis that the witness was not called. There must be a basis in evidence to support the inference. The existing facts from which the inference sought to be made are:

a.Mr Subramonian was at the date of the hearing in the defendant’s employ and he would more readily be considered as in the defendant’s “camp”;
b.The comments attributed to Mr Subramonian by the plaintiff in the alleged conversation, although occurring in May 2015 and therefore some months after the plaintiff’s termination, purport to relate to a direction given to him to undertake the plaintiff’s duties following on from the plaintiff’s termination in February 2015;
c.The direction attributed to Mr Subramonian by the defendant was broader and purportedly all-encompassing of the plaintiff’s previous duties whereas the defendant would have me accept on the evidence he was limited to taking phone calls and responding to emails as required;
d.The performance by Mr Subramonian of the plaintiff’s duties is consistent with the organisation chart that was produced and followed the plaintiff’s termination that no longer identified his former position [CB 251].

I accept that the inferences referred to by me in sub paragraphs b to d could arise but I am not satisfied that they rise above conjecture to amount to adverse inferences. If I am wrong in that conclusion, then the question would be whether the defendant adduced sufficient other evidence to displace the inferences stemming from the failure to call Mr Subramonian. If it had been necessary for me to decide the question on that basis then I would have been satisfied that the defendant had adduced sufficient evidence to displace the inferences. In some respects I have already addressed the supposed relevance of Mr Subramonian. However, for the sake of completeness, I place reliance on the following evidence. Ms Law’s evidence was that had the role performed by the plaintiff been performed by Mr Subramonian his position description would have been changed and it did not and his remuneration would have been altered and it did not and this was because the roles had not merged. The language used in the email sent to the Sales and Marketing staff by Mr Gomez after the plaintiff’s employment was terminated [CB 110] to “direct all Portable Product related queries to [Mr Subramonian] until further notice” is more consistent with Mr Subramonian being allocated such of the plaintiff’s duties as necessary to “hold the fort” until a suitable replacement could be obtained and not that he fulfil the plaintiff’s role or that he undertake a realignment or reallocation of the myriad duties that the plaintiff fulfilled as National Product Manager for Portable Compressors and that were contained in his position description identified at [CB 154].
The contrasting organisation charts exhibited by the parties does raise a matter for consideration. The plaintiff exhibited the defendant’s organisation chart as it stood in January 2015, that is prior to the plaintiff’s termination of employment, and it identified the plaintiff as the incumbent “National production Manager – Portable”. Following the plaintiff’s termination the organisation chart [CB 251] no longer contained a box with that position. However, Ms Sweet submitted that the chart maintained the space where the position had “sat” on the chart. Mr Gunst pointed out nonetheless that the organisation chart in existence after December 2015 exhibited by the defendant [CB 253] whilst identifying Mr Maizey in the position of “National Portable Product Manager Sydney,” reveals that despite Mr Gomez having left the defendant’s employment, the position previously held by him had not been removed and a space was left where it had sat and was identified as “spare”. Mr Gunst submitted that I could draw from this variation in presentation that at least after the plaintiff’s termination and until Mr Maizey was appointed the plaintiff’s position had ceased to exist.
The defendant’s explanation for the variation in the organisation charts was given by Ms Law. She said that the chart’s functionality was to identify the “headcount” at any particular time. That may well be but nonetheless the defendant’s own designation of the charts was expressed as constituting an “organisation” flow chart and it is not reconcilable on the evidence why the position identified when occupied by the plaintiff disappeared after his termination and appeared again, although slightly differentially titled, by December 2015 when Mr Maizey commenced employment. Moreover, it was not explicable on the defendant’s evidence, why despite Mr Gomez having left the defendant’s employ, his position remained marked in the organisational space it had occupied although the incumbent was designated as “spare”.
In Zafiriou v Saint-Gobain Administration Pty Ltd [2013] VSC 377, Emerton J said:
“The question for the court is not whether Mr Zafiriou's performance justified his dismissal, but whether Mr Chaur's concerns about Mr Zafiriou's performance were contrived in order to justify a performance-based termination. The question then is whether there was a basis for Mr Chaur to hold performance concerns so as to displace or negate the suggestion that the concerns he identified were contrived”.
1. With respect, if I may say, the above passage by her Honour succinctly identifies the interconnectedness of two relevant strands of inquiry, whenever performance related factors intersect with a subsequent restructuring or redistribution of duties.
2. The concern raised by the changes to the organisation charts must be tempered by asking if they provide the evidentiary bridge to link the termination of the plaintiff for performance to a reorganisation or redistribution of roles such that at least his performance or matters personal to him were not the sole reason for his termination. In my view it does not. Adopting the language used by Her Honour in Zafirio, the question is, whether there was a basis for the defendant to hold performance concerns so as to displace or negate the suggestion that the concerns identified were contrived. I am satisfied that the evidence discloses a real basis on which the defendant held the performance concerns and that these resulted in his termination of employment. The detailed notes taken by Ms Law following each performance meeting with the plaintiff provided a factual grounding for the criticism levelled at the plaintiff including matters that were emblematic of the employer’s concerns about the plaintiff’s lack of initiative including poor communication within his sales team. In addition, I have noted that Ms Law’s notes were far from partial from the defendant’s perspective, but rather included notes of responses by the plaintiff that squarely recognised his disagreement with the criticisms that were being levelled at him by his employer. For example, at [CB 197] Ms Law’s handwritten notes record that the plaintiff disagreed with the comments about his performance and she noted that he regarded his performance “has been exceptional”. Equally it was the case that there prevailed a difference of opinion between the plaintiff manager’s expectations such as a failure to have met a deadline by two days and an insufficiency of sales of Euro portables. The plaintiff although having indicated a reason why sales had not been met ultimately did not dispute that the number required to be made had not been made. Furthermore, Ms Law’s notes and subsequent typed record of the meeting of 8 December 2014 [CB211-212] identified a number of ongoing issues of concern regarding the plaintiff. In my judgement the plaintiff’s evidence did not negate the genuineness of the issues raised by his employer regarding his performance such as to displace them as matters of fact as opposed to matters of contrivance. The employer’s judgment on the plaintiff’s performance may have been decided otherwise by another manager but that is not the point.
3. If I am wrong about the importance that should be attributed to the organisation structure and the charts then nonetheless I would not be satisfied that their existence subsequent in time to a termination for performance were prohibited or that their creation at a point in time chronologically unrelated to the termination of the plaintiff’s employment can negate the reason for the termination and thus confer on it the character of redundancy.

Resolving the conflict created by the post termination duties

I am satisfied that the plaintiff was terminated from his employment solely by reason of performance related matters.
Had it been necessary for me to decide if the period of time afforded the plaintiff was fair or if a lack of sufficiency of time or provision of particulars of poor performance was evidence of a fait accompli such that the performance management process was a device to cloak a redundancy wrought by a desired redistribution of the plaintiff’s duties, I would not have been so satisfied. It was a logical and probably inevitable consequence of the plaintiff being identified as a “low performer” as part of the 2014 talent pool review together with the opinions and feedback of the plaintiff’s sales team and the opinion of the plaintiff’s performance formed by Mr Gomez and Mr Funnell that he would be the subject of performance management.
The approach I have adopted and the conclusions I have reached find some reflection in the decision of Sackville AJA ( with whom Giles JA and MacFarlan JA agreed) in Encyclopaedia Britannica Australia Ltd v David Campbell [ 2009] NSWCA 286 at [ 59 -65] which reasons culminated with the following:

“The respondent’s submission that this Court should find that Ms Mansoor’s decision was partly motivated by her desire to relocate the Managing Director’s responsibilities cannot be accepted. It is inconsistent with the uncontroverted evidence”.

I accept that in this proceeding, as opposed to the decision of the NSW Court of Appeal in Encyclopaedia Britannica Australia, the plaintiff argued the existence of evidence of an intention by Mr Gomez and Mr Funnell and Ms Law to terminate the plaintiff solely for poor performance and such the matters were not “uncontroverted”. Mr Funnell was cross-examined about the plaintiff’s poor performance and that it was a device to shield a redundancy as was Ms Law but, of course, Mr Gomez was not. I have already noted that the absence of Mr Gomez is not a matter of importance.

I am satisfied that had the decision to terminate the plaintiff on the pretext of performance when in fact it was for operational reasons then such a decision would have been one requiring decision making of a higher order than Mr Gomez, such as, at the least, Mr Funnell who when cross examined on the matter denied that occurred. I accept Mr Funnell’s evidence. None of the evidence adduced by the plaintiff suggests steps taken along a path of reordering of the plaintiff’s role in anticipation of his termination whereas the evidence relied on by the defendant does disclose a path based on the plaintiff’s performance leading to and culminating with his termination. The only divergence occurs chronologically after the plaintiff’s employment was terminated and its only objective resonance is in the organisation chart. However, I am not satisfied that the anomaly arising from the form in which the structure was created subsequent to the plaintiff’s termination but then in any event conformably reworked when Mr Maizey came on board is sufficient evidence to displace the performance related reasons that supported and informed the decision to terminate the plaintiff.

In relation to the submission on behalf of the plaintiff that I should have regard to the absence of steps taken by the defendant to replace him I have also addressed this evidence already in my reasons. I accept that the nature of the role, coupled with the specialist market and limited players in the field meant that the probable means of securing a replacement would be by word of mouth and informal networking, something that Ms Law testified accounted for approximately 70 % of hiring. I accept her evidence.

I am not satisfied that the contentious statement attributed to Mr Subramonian by the plaintiff without the existence of objective evidence of an intention to restructure or redistribute the role held by the plaintiff provides a cogent basis to find the plaintiff was made redundant. In addition the evidence that Mr Gomez told Ms Law that he was very concerned about the plaintiff’s lack of sales is, as I have already explained, explicable, logical, and innocuous and stemmed from a common feature of complaint regarding the plaintiff’s performance about which he was notified over the course of the performance management process. I am not satisfied it amounts to objective evidence of an intention by Mr Gomez, but more relevantly, the defendant, to reorganise and restructure the plaintiff’s position under the pretext of the termination of his employment.

For the reasons expressed above the plaintiff’s claim is dismissed.

I will hear the parties on the question of costs if any and the basis for the same.