Garbett v Midland Brick Company Pty Ltd

[2003] WASCA 36

GARBETT -v- MIDLAND BRICK COMPANY PTY LTD [2003] WASCA 36

Jurisdiction:	WESTERN AUSTRALIAN INDUSTRIAL APPEAL COURT	Citation No:	[2003] WASCA 36
Case No:	IAC:3/2002	Heard:	1 OCTOBER 2002
Coram:	PARKER J HASLUCK J EM HEENAN J	Delivered:	10/03/03
No of pages:	44	Judgment Part:	1 of 1
Result:	Appeal allowed
Category:	A
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Parties:	GARY EDWARD GARBETT MIDLAND BRICK COMPANY PTY LTD
Catchwords:	Unfair dismissal remedies dismissal following redundancy Nature of employer's obligation to inform and discuss Whether a sufficient discussion held as to the likely effects of redundancy Whether breach of an implied term necessarily amounts to an unfair dismissal Nature of further findings to be made
Legislation:	Commonwealth Powers (Industrial Relations) Act 1996 (Vic) Constitution, s 51(xxxvii) Fair Trading Act 1984 Hire Purchase Act 1959 Industrial Relations Act (1979), s 23A, s 29, s 83, s 90, Pt III Interpretation Act 1984, s 18 Justices Act 1902, s 46 Minimum Conditions of Employment Act (1993), s 3, s 5, s 7, s 11, s 12, s 13, s 14, s 15, s 16, s 17, s 19, s 20, s 21, s 22, s 27, s 28, s 29, s 30, s 31, s 33, s 34, s 35, s 36, s 37, s 38, s 39, s 40, s 41, s 42, s 43 Sale of Goods Act (1895) Trade Practices Act (1974), s 70, s 71, s 82 Workplace Agreements Act Workplace Relations Act (1996) (Cth), s 492
Case References:	Ali Shipping Corp v Shipyard Trogir [1998] 2 All ER 136 Arturi v Zupps Motors Pty Ltd (1980) 33 ALR 243; 49 FLR 283 Bogunovich v Bayside Western Australia Pty Ltd (1998) 78 WAIG 3635 Bostik (Australia) Pty Ltd v Gorgevski (No 1) (1992) 36 FCR 20 Budget Couriers Equity Management v Beshara (1993) 5 VIR 173 Bunnett v Henderson's Federal Spring Works Pty Ltd (1989) 31 AILR 356 Byrne & Frew v Australian Airlines Ltd (1994) 47 FCR 300 Byrne & Frew v Australian Airlines Ltd (1995) 185 CLR 410 Coles Myer Ltd v Coppin & Ors (1993) (1993) 11 WAR 20; 73 WAIG 1754 Collector of Customs v Agfa-Gevaert Ltd (1995) 186 CLR 389 Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 Dellys v Elderslie Finance Corporation Ltd [2002] WASCA 161 Dornan v Riordan (1990) 24 FCR 564 FDR Pty Ltd & Ors v Gilmore & Ors; Gilmore v Cecil Bros & Ors (1998) 78 WAIG 1099 Gibbs v City of Altona (1992) 37 FCR 216 Gregory v Philip Morris Ltd (1988) 80 ALR 455 Gromark Packaging v Federated Miscellaneous Workers Union of Australia, WA Branch (1992) 46 IR 98 Kenefick v Australian Submarine Corporation Pty Ltd (No 2) (1996) 65 IR 366 Metwally v University of Wollongong (1985) 60 ALR 68 Miles v Federated Miscellaneous Workers' Union of Australia, Hospital Service and Miscellaneous (WA) Branch (1985) 17 IR 179; 65 WAIG 385 North West County Council v Dunn (1971) 126 CLR 247 Quality Bakers of Australia Ltd v Goulding; Wickham v Quality Bakers of Australia Ltd (1995) 60 IR 327 R v Industrial Commission of South Australia; Ex parte Adelaide Milk Supply Co-Operative Ltd (1977) 16 SASR 6 R v Industrial Court of South Australia; Ex parte General Motors-Holdens Pty Ltd (1975) 10 SAIR 582 Robe River Iron Associates v Australian Workers' Union, WA Branch (1987) 67 WAIG 320 Robe River Iron Associates v The Association of Draughting, Supervisory and Technological Employees, WA Branch (1987) 76 WAIG 1104 Ruane v Woodside Offshore Petroleum Pty Ltd (1990) 71 WAIG 913 Scally v Southern Health and Social Services Board [1992] 1 AC 294 Shepherd v Felt and Textiles of Australia Ltd (1931) 45 CLR 359 Shire of Esperance v Mouritz (No 1) (1991) 71 WAIG 891 Tai Hing Cotton Mill Ltd v Liu Chong Hing Bank [1986] AC 80 Abalos v Australian Postal Commission (1990) 171 CLR 167 Amalgamated Metal Workers & Shipwrights Union v Australian Shipbuilding Industries (WA) Pty Ltd (1987) 67 WAIG 733 D McAdam v Swersky & Velos (1997) S Print P2151 Devries v Australian National Railways Commission (1993) 177 CLR 472 Estevez v Gerard Industries Pty Ltd [1994] SAIR Comm 94, 29 September 1994 FMWU v HSOA & Ors 65 WAIG 2033 Gilmore v Cecil Bros (1996) 76 WAIG 4434 I Magafas v Victorian Textile Centre (1996) Dec 1646/96 M Print N 7187 Nydegger v Tredways Shoestore South Hedland (1997) 72 IR 455 Smith v Domino Mining Equipment Pty Ltd (1998) Dec 124/98 N Print P8664 Stones & Ors & CEPU v Simplot Australia Pty Ltd (1996) No T1-1056 of 1996 Warren v Coombes (1979) 142 CLR 531 Western Australia Aboriginal Media Association v Jodi Ann Hoffmann (2000) 80 WAIG 4329

JURISDICTION : WESTERN AUSTRALIAN INDUSTRIAL APPEAL COURT CITATION : GARBETT -v- MIDLAND BRICK COMPANY PTY LTD [2003] WASCA 36 CORAM : PARKER J

HASLUCK J
EM HEENAN J

HEARD : 1 OCTOBER 2002 DELIVERED : 10 MARCH 2003 FILE NO/S : IAC 3 of 2002 BETWEEN : GARY EDWARD GARBETT

Appellant

AND

MIDLAND BRICK COMPANY PTY LTD
Respondent

Catchwords:

Unfair dismissal - remedies - dismissal following redundancy - Nature of employer's obligation to inform and discuss - Whether a sufficient discussion held as to the likely effects of redundancy - Whether breach of an implied term necessarily amounts to an unfair dismissal - Nature of further findings to be made

Legislation:

Commonwealth Powers (Industrial Relations) Act 1996 (Vic)

Constitution, s 51(xxxvii)
Fair Trading Act 1984
Hire Purchase Act 1959


(Page 2)

Industrial Relations Act (1979), s 23A, s 29, s 83, s 90, Pt III
Interpretation Act 1984, s 18
Justices Act 1902, s 46
Minimum Conditions of Employment Act (1993), s 3, s 5, s 7, s 11, s 12, s 13, s 14, s 15, s 16, s 17, s 19, s 20, s 21, s 22, s 27, s 28, s 29, s 30, s 31, s 33, s 34, s 35, s 36, s 37, s 38, s 39, s 40, s 41, s 42, s 43
Sale of Goods Act (1895)
Trade Practices Act (1974), s 70, s 71, s 82
Workplace Agreements Act
Workplace Relations Act (1996) (Cth), s 492

Result:

Appeal allowed

Category: A

Representation:

Counsel:

Appellant : Mr B F Stokes
Respondent : Mr A J Power

Solicitors:

Appellant : Industrial Negotiators of Australia
Respondent : Mallesons Stephen Jaques

Case(s) referred to in judgment(s):

Ali Shipping Corp v Shipyard Trogir [1998] 2 All ER 136
Arturi v Zupps Motors Pty Ltd (1980) 33 ALR 243; 49 FLR 283
Bogunovich v Bayside Western Australia Pty Ltd (1998) 78 WAIG 3635
Bostik (Australia) Pty Ltd v Gorgevski (No 1) (1992) 36 FCR 20
Budget Couriers Equity Management v Beshara (1993) 5 VIR 173
Bunnett v Henderson's Federal Spring Works Pty Ltd (1989) 31 AILR 356
Byrne & Frew v Australian Airlines Ltd (1994) 47 FCR 300
Byrne & Frew v Australian Airlines Ltd (1995) 185 CLR 410
Coles Myer Ltd v Coppin & Ors (1993) (1993) 11 WAR 20; 73 WAIG 1754
Collector of Customs v Agfa-Gevaert Ltd (1995) 186 CLR 389


(Page 3)

Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280
Dellys v Elderslie Finance Corporation Ltd [2002] WASCA 161
Dornan v Riordan (1990) 24 FCR 564
FDR Pty Ltd & Ors v Gilmore & Ors; Gilmore v Cecil Bros & Ors (1998) 78 WAIG 1099
Gibbs v City of Altona (1992) 37 FCR 216
Gregory v Philip Morris Ltd (1988) 80 ALR 455
Gromark Packaging v Federated Miscellaneous Workers Union of Australia, WA Branch (1992) 46 IR 98
Kenefick v Australian Submarine Corporation Pty Ltd (No 2) (1996) 65 IR 366
Metwally v University of Wollongong (1985) 60 ALR 68
Miles v Federated Miscellaneous Workers' Union of Australia, Hospital Service and Miscellaneous (WA) Branch (1985) 17 IR 179; 65 WAIG 385
North West County Council v Dunn (1971) 126 CLR 247
Quality Bakers of Australia Ltd v Goulding; Wickham v Quality Bakers of Australia Ltd (1995) 60 IR 327
R v Industrial Commission of South Australia; Ex parte Adelaide Milk Supply Co-Operative Ltd (1977) 16 SASR 6
R v Industrial Court of South Australia; Ex parte General Motors-Holdens Pty Ltd (1975) 10 SAIR 582
Robe River Iron Associates v Australian Workers' Union, WA Branch (1987) 67 WAIG 320
Robe River Iron Associates v The Association of Draughting, Supervisory and Technological Employees, WA Branch (1987) 76 WAIG 1104
Ruane v Woodside Offshore Petroleum Pty Ltd (1990) 71 WAIG 913
Scally v Southern Health and Social Services Board [1992] 1 AC 294
Shepherd v Felt and Textiles of Australia Ltd (1931) 45 CLR 359
Shire of Esperance v Mouritz (No 1) (1991) 71 WAIG 891
Tai Hing Cotton Mill Ltd v Liu Chong Hing Bank [1986] AC 80

Case(s) also cited:

Abalos v Australian Postal Commission (1990) 171 CLR 167
Amalgamated Metal Workers & Shipwrights Union v Australian Shipbuilding Industries (WA) Pty Ltd (1987) 67 WAIG 733
D McAdam v Swersky & Velos (1997) S Print P2151
Devries v Australian National Railways Commission (1993) 177 CLR 472
Estevez v Gerard Industries Pty Ltd [1994] SAIR Comm 94, 29 September 1994
FMWU v HSOA & Ors 65 WAIG 2033
Gilmore v Cecil Bros (1996) 76 WAIG 4434
I Magafas v Victorian Textile Centre (1996) Dec 1646/96 M Print N 7187


(Page 4)

Nydegger v Tredways Shoestore South Hedland (1997) 72 IR 455
Smith v Domino Mining Equipment Pty Ltd (1998) Dec 124/98 N Print P8664
Stones & Ors & CEPU v Simplot Australia Pty Ltd (1996) No T1-1056 of 1996
Warren v Coombes (1979) 142 CLR 531
Western Australia Aboriginal Media Association v Jodi Ann Hoffmann (2000) 80 WAIG 4329

(Page 5)

1 PARKER J: For the reasons published by E M Heenan J, I agree that this appeal should succeed and that the orders proposed by his Honour should be made.

2 HASLUCK J: The appellant, Gary Edward Garbett, applied to the Industrial Relations Commission for relief on the grounds that he was harshly, oppressively or unfairly dismissed by the respondent, Midland Brick Company Pty Ltd. He claimed that he was made redundant without any prior consultation contrary to certain provisions of the Minimum Conditions of Employment Act 1993.

3 The appellant was unable to obtain relief from the Industrial Relations Commission. The notice of appeal to the Industrial Appeal Court raises various issues for consideration. The principal issue is whether the requirements of the Minimum Conditions of Employment Act concerning redundancy were complied with.

Background

4 In April 1994 the appellant applied for and obtained the position of Senior Purchasing Officer and Store Manager for the respondent company. He was responsible for the supervision of a number of employees including purchasing officers, store warehouse personnel and two crane drivers. In March 1998 his contract of service was revised. The appellant became the Purchasing Manager but with diminished authority.

5 In August 1998, following the appointment of a new General Manager, Mr Arndt, all areas of the business were put under pressure to perform and it was made known to the workforce by management that the structure of the business was under review. In November 1998, on the appellant's evidence, he commenced reporting to the Commercial Manager, Mr Richard Hyland.

6 By letter dated 18 November 1998 the appellant was informed by Mr Hyland that, as a consequence of a restructuring, the appellant's title and role would be "Senior Purchasing Officer". His remuneration remained unchanged but he was told that his role and "that of the other purchasing officers" would be to report directly to the Procurement Manager, Mr Wheatley. Evidence given at the hearing suggested that this was a demotion.

(Page 6)

7 In 1999 all purchasing officers underwent a performance appraisal. It seems that they were all rated fully satisfactory except for the appellant who was rated "improvement required". The appellant acknowledged in writing on the relevant document that he agreed with the result.

8 In April 2000, the appellant returned from leave to find that the office which he occupied with another purchasing officer, Ms Caroline Jamieson, was partitioned so that he and she then had each a small office instead of both occupying one office. He was not consulted about this change.

9 On 18 May 2000, in the course of a short interview in Mr Wheatley's office, the appellant was told that a review had occurred of the Stores and Purchasing Department as a result of which, his position as Senior Purchasing Officer had been made redundant. This was to take effect immediately and, as a result, his employment would terminate that day.

10 The appellant's evidence in the subsequent proceedings was to the effect that he was not forewarned of any proposed retrenchment. He was not given the option of working out his notice. He was simply handed a letter dated 18 May 2000 from the Commercial Manager, Mr Hyland, to himself which made it clear that there was no suitable alternative employment for him.

11 The letter dated 18 May 2000 reads as follows (omitting the inessential parts)

"As a result of a recent review of the Stores and Purchasing department, the position of Senior Purchasing Officer has been made redundant effective immediately. This means that your employment with the company ceases effective today. The company has considered alternative positions but unfortunately we have not been able to find any suitable alternative employment for you.

You will be paid a redundancy payment in accordance with the Boral Redundancy Policy. Payment details, including accrued benefits such as Annual Leave and Long Service Leave are outlined in the attached Redundancy Payment Advice.

In addition to the redundancy payment, the company will provide outplacement support to you to an agreed limit through Chandler and MacLeod. This service will include job search services and planning for your future. Please contact Catherine

(Page 7)

Hawkins or Andy Hughes on 9381 9133 to facilitate this service being provided.

If you have any questions relating to your redundancy entitlement and its processing, please contact Mark Radford at the Pay office on 5518.

The company regrets that there is no suitable alternative employment for you and wishes you well for the future."

12 The evidence given later established that a redundancy payment of $30,659.01 was credited to the appellant's account on 17 May 2000, that is to say, on the day prior to the dismissal. Evidence was given on behalf of the respondent company that this payment was due to a processing error made by officers of the company in Sydney.

Legal Proceedings

13 By notice of application dated 24 May 2000 the appellant lodged a claim for unfair dismissal with the Industrial Relations Commission. The grounds of the claim were said to be that he was "made redundant without any prior consultation" in breach of s 40, s 41 and s 42 of the Minimum Conditions of Employment Act. He sought reinstatement as the primary remedy or alternatively 26 weeks compensation in lieu of reinstatement in the sum of $27,345.

14 Section 41 of the Minimum Conditions of Employment Act lies within Pt 5 of the Act. It reads as follows:

"41(1) Where an employer has decided to -

(a) take action that is likely to have a significant effect on an employee; or

(b) make an employee redundant,


the employee is entitled to be informed by the employer, as soon as reasonably practicable after the decision has been made, of the action or the redundancy, as the case may be, and discuss with the employer the matters mentioned in subsection (2).

(2) The matters to be discussed are -

(Page 8)

(a) the likely effects of the action or the redundancy in respect of the employee; and

(b) measures that may be taken by the employee or the employer to avoid or minimize a significant effect,

as the case requires."

15 By s 40(1) the term "redundant" means being no longer required by an employer to continue doing a job because, for a reason that is not a usual reason for change in the employer's work-force, the employer has decided that the job will not be done by any person.

16 I note in passing that, by s 3 of the Act, the term "minimum condition of employment" is defined to include a condition prescribed by Pt 5. The effect of s 5(1) of the Act is that minimum conditions of employment extend to and bind all employees and employers and are taken to be implied in any award or a contract of employment. Section 5(2) provides that a condition of an award or a contract of employment that is less favourable to the employee than a minimum condition of employment has no effect. By s 5(4) a purported waiver of a right under the Act has no effect.

17 The appellant's application was brought on for hearing before Commissioner Wood. On 9 May 2001 he ruled that the appellant was not entitled to relief. He held at par 53 of his judgment that the respondent had discharged its onus of proving there was a valid redundancy and noted that the appellant's duties were picked up by the remainder of the staff in the purchasing section. He considered that the appellant was offered the opportunity to work out his notice and that there was no malice or oppression involved in the changes to the office accommodation.

18 Commissioner Wood went on to hold that the respondent did not infringe the requirements of the Minimum Conditions of Employment Act. He made the following observations at par 60 concerning an argument put to him by Mr Stokes on behalf of the appellant:

"Mr Stokes says also that the respondent did not comply with s 41(1)(b) in that Mr Garbett was not told as soon as reasonably practicable after the decision was made. The evidence of Mr Ryan was that Mr Arndt decided who was to be made redundant based on a recommendation. He says that Mr Arndt

(Page 9)

agreed to Mr Garbett's redundancy late on 17 May 2000. Mr Ryan says that the paperwork to implement the redundancy was prepared in advance and that Mr Garbett was advised in the meeting on the morning of 18 May 2000. He also says that the payment to Mr Garbett on 17 May 2000 was an error in communication with the Sydney office. I would say that I have paid close attention to the giving of this evidence and the extensive cross-examination and I accept the evidence of Mr Ryan as plausible and correct. In that sense, while the respondent has not been sufficiently careful, I do not find that they have breached this provision of the Minimum Conditions of Employment Act."

19 Later, Commissioner Wood found that the appellant had not proved his case that someone else should have been chosen for redundancy or that he should have been given another position. He concluded as follows:

"Whilst I consider a greater level of discussion with Mr Garbett would have been appropriate, weighing up all the circumstances in this matter, I do not consider that Mr Garbett's selection for redundancy was unfair, harsh or oppressive. Accordingly, I would dismiss the application."

Appeal to Full Bench

20 The appellant's agent, Mr Stokes, lodged notice of appeal to the Full Bench against the whole of the decision. The Commissioner was said to have erred in law and fact in respect of a number of discrete matters. Ground 1 was directed to a finding that at the time of termination the appellant had equal status with the other three purchasing officers, ground 2 was directed to credibility issues, ground 3 was directed to a review of the employment situation undertaken in December 1999, ground 4 concerned the employer's compliance with s 41 of the MCE Act, ground 5 was directed to the Commissioner's finding that the appellant's position was redundant, ground 6 concerned an alleged failure by the Commissioner to act with procedural fairness.

21 The Full Bench dismissed the appeal on 6 February 2002. His Honour the President PJ Sharkey handed down lengthy reasons for decision which were endorsed by Commissioners Coleman and Smith.

(Page 10)

22 The President noted at par 38 of his reasons for decision that the Commissioner at first instance had found the following:

"(a) That the respondent had discharged the onus in proving that there was a valid redundancy and that the employer was engaged in an extensive review of its operations.

(b) That Mr Garbett's position was not filled by anyone else following his termination, which followed a series of reviews including an assessment of Mr Garbett's work area and a decision to reduce costs by $100,000.00. Mr Garbett's duties were picked up by the remainder of the staff in purchasing and the unchallenged evidence was that this change was operating well.

(c) That the redundancy was effected to save costs and that Mr Garbett was made redundant largely, but not solely, for costs reasons, the other factor being performance.

(d) The Commissioner did not accept, the employer having made a choice between Mr Garbett and other purchasing staff, Mr Garbett's equivocal and unconvincing evidence that there were other positions for which he could have been considered.

(e) That Mr Garbett, on the evidence, was offered the opportunity to work out his notice and he did not consider that there was any malice or oppression in the changes to the office accommodation on the part of the respondent.

(f) That, whether another employee should have been chosen for redundancy instead of Mr Garbett, was not established by Mr Garbett.

(g) That the respondent had not offended the requirements of the MCE Act.

(h) That the evidence was that Mr Garbett was not targeted for cost cutting and that other workers were made redundant and operation of costs, including the costs of inventory, were reduced and continued to be reduced.

(i) That this fitted within the definition in s 40 of the MCE Act.

(Page 11)

(j) That, as to s 41(1)(b) of the MCE Act, the Commissioner accepted Mr Ryan's evidence and that, whilst the respondent had not been sufficiently careful, this provision of the MCE Act was not breached.

(k) That, whilst he considered a greater level of discussion with Mr Garbett would have been appropriate, weighing up all of the circumstances in the matter, he did not consider that Mr Garbett's selection for redundancy was unfair, harsh or oppressive, and accordingly would dismiss the application."

23 Against the background of these findings, President Sharkey proceeded to address each of the six grounds of appeal. In the final analysis, he was of the view that the appellant had not established that the exercise of the discretion at first instance had miscarried. He held that no ground of appeal was made out. Accordingly, the appeal should be dismissed.

Appeal to Industrial Appeal Court

24 The appellant proceeded to lodge a notice of appeal from the decision of the Full Bench to the Industrial Appeal Court. The grounds of appeal are prolix, and are directed to many issues of fact. It became apparent at the hearing that many of the issues and sub-issues raised by the grounds of appeal did not have any real prospects of success. At the material time s 90(1) of the Industrial Relations Act provided that an appeal lies to the Industrial Appeal Court from any decision of the Full Bench on the ground that the decision is erroneous in law or is in excess of jurisdiction but upon no other ground. I will therefore give only a broad description of the grounds of appeal. Each of the grounds was prefaced by a reference to an alleged error in law in failing to give proper consideration to and provide adequate reasons for certain findings.

25 The appellant asserted in ground 1 that the Full Bench erred in law in regard to certain findings concerning the performance of the appellant. Ground 2 was directed to the respondent's redundancy policy and related matters. Ground 3 was directed to certain supposed findings such as the lack of a specific warning that the appellant's job was in jeopardy and the basis for the redundancy. Ground 4 was directed to further evidentiary issues including a supposed finding that the redundancy payment was paid into the appellant's account by mistake and a finding that the appellant was given the option of working out his notice. Ground 5 was directed to

(Page 12)

an issue concerning discovery and a supposed finding that there was no prejudice to the appellant in respect of procedural fairness issues.

26 Importantly, for present purposes, ground 4 contained an assertion that the Full Bench erred in law in failing to give proper consideration to and provide adequate reasons for two findings in particular, namely, that the requirements of the Minimum Conditions of Employment Act were complied with (par 4(d)); that the appellant waived his right to discuss the adverse effects of his redundancy at the meeting of the 18 May 2000 (par 4(e)).

Legal Principles

27 In earlier discussion I noted that for present purposes an appeal lies to the Industrial Appeal Court on the ground that the decision is erroneous in law or is in excess of jurisdiction. It is generally thought that the question of whether a word or phrase in a statute is to be given its ordinary meaning or some other meaning is a question of law. The meaning of a technical legal term is a question of law. The effect or construction of a term whose meaning or interpretation is established is a question of law. Whether facts fully found fall within the provision of a statutory enactment properly construed is generally characterised as a question of law: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280; Collector of Customs v Agfa-Gevaert Ltd (1995) 186 CLR 389.

28 The reasoning processes which led to the operative conclusions should be set out in clear and unambiguous language so that it can be determined whether there is an error of fact or of law: Ruane v Woodside Offshore Petroleum Pty Ltd (1990) 71 WAIG 913. A substantial failure to state reasons for a decision where reasons should be given can amount to an error of law: Dornan v Riordan (1990) 24 FCR 564.

29 In Gromark Packaging v Federated Miscellaneous Workers Union of Australia, WA Branch (1992) 46 IR 98 Franklyn J of the Industrial Appeal Court reviewed a number of previously decided cases with a view to defining the proper approach to be adopted by the Industrial Appeal Court in regard to a claim of unfair dismissal where redundancy was in issue. I am conscious that that case was decided prior to the enactment of the Minimum Conditions of Employment Act.

30 Franklyn J was of the view that in the circumstances of that case the finding of fact which gave rise to the dismissal was not one of misconduct

(Page 13)

but of redundancy. That was a conclusion of fact arrived at by inference from found facts by the Commissioner who had the benefit of seeing and hearing witnesses. His Honour affirmed the principle that an appellate court does not overturn findings of fact unless satisfied that the trial Judge has misdirected himself or that any advantage enjoyed by the trial Judge by reason of having seen and heard the witnesses could not be sufficient to explain or justify the trial Judge's conclusions. His Honour said that, as to inferences, an appellate court may itself decide on the proper inferences to be drawn from facts which are undisputed or established by the findings of the trial Judge, but it shall give full weight and respect to the conclusions of the trial Judge. An inference properly open on such facts is only to be overturned if considered wrong. These principles are to be applied by the Full Bench. The appeal to the Industrial Appeal Court in the Gromark case succeeded because it was not open to the Full Bench to substitute a finding contrary to the finding made by the Commissioner at first instance.

31 In the course of his reasons for decision Franklyn J drew upon the reasoning in Robe River Iron Associates v Australian Workers' Union, WA Branch (1987) 67 WAIG 320. He held that a decision on the question of whether a dismissal was unfair is a discretionary decision because a value judgment is required to be made as to whether the conduct which gave rise to the dismissal, viewed in all of its circumstances, justified the dismissal. However, a finding of misconduct or of redundancy, which gives rise to a legal right to dismiss an employee, is not the subject of a discretionary judgment. A finding as to misconduct or redundancy is a conclusion of fact. The exercise of discretion arises only at the next step, that is to say, in determining whether the consequence of the misconduct or redundancy is fairly that of dismissal.

32 In the present case, consistently with the reasoning I have just described, I proceed from the premise that findings directed to the question of whether there was a redundancy gave rise essentially to an issue of fact. As to a factual issue of that kind, prima facie, it was not open to the Full Bench, and it is not open to the Industrial Appeal Court, to substitute a contrary finding unless the finding was tainted by an element of misdirection. On the other hand, the Commissioner's ruling can properly be characterised as a discretionary judgment.

33 A party appealing from a decision is generally not at liberty to raise a new argument on appeal which it failed to put (whether deliberately or inadvertently) during the hearing giving rise to the decision appealed from: Metwally v University of Wollongong (1985) 60 ALR 68. Further,

(Page 14)

an appellant is generally confined to the issues raised in the notice of appeal.

34 I pause to say that there was some suggestion in the circumstances of the present case that the appellant was not at liberty to raise the question of whether the employer had discharged its obligation to inform pursuant to s 41 of the Minimum Conditions of Employment Act. However, I am of the view that this matter can be raised. It was brought into issue by the description of the grounds of relief set out in the appellant's initial application to the Industrial Relations Commission. To my mind, it is sufficiently reflected in grounds 4(e) and 4(d) of the notice of appeal to the Industrial Appeal Court. It has been a live issue throughout the dispute.

Some General Observations

35 In view of the conclusion I have come to concerning grounds 4(e) and 4(d) of the notice of appeal I am not inclined to traverse at length the arguments and submissions bearing upon the other grounds of appeal. The grounds were not expressed in a succinct manner and the arguments directed to them were mostly concerned with evidentiary issues and attempts to modify or displace findings of fact. I was not persuaded, having regard to my review of the relevant legal principles, that the appeal should be allowed on any of these grounds.

36 In my view, the principal issue before the Industrial Appeal Court was the issue reflected in ground 4(e) of the notice of appeal, namely, whether the respondent company complied with the requirements of the Minimum Conditions of Employment Act. This ground of appeal is broadly expressed. However, as I have indicated, having regard to the terms of the initial application for relief, it can be regarded as bringing into issue essentially the question of whether the respondent employer complied with its obligations under s 41 of the Minimum Conditions of Employment Act. The resolution of this question will have a bearing upon the further question of whether the termination of the appellant's employment was effected unfairly.

37 In earlier discussion I noted that the Industrial Appeal Court is not at liberty to review findings of fact save in certain limited circumstances. However, the question of whether findings of fact fall within the scope of a statutory enactment properly construed is generally a question of law. When one examines the reasoning of Commissioner Wood in the present case, the interpretation given to s 41 of the Minimum Conditions of

(Page 15)

Employment Act and the notion that an employee is entitled to be informed and to discuss certain matters with the employer is not made clear. The findings of fact bearing upon this issue do not appear to be sufficient to support the ruling in favour of the respondent company.

38 I digress to say that I find the language used in s 41 of the Act to be somewhat problematic. The draftsman seems to have made a determined effort to avoid using the normative language usually associated with the creation of rights and duties, although, as the heading indicates - "Employee to be Informed" - it seems that an entitlement, or something in the nature of a right, is being conferred upon the employee. This suggests, according to the conventional mode of jurisprudential reasoning, that the employer is subject to a corresponding duty.

39 Viewed in that light, the provision says, in effect, that where an employer has decided to make an employee redundant he shall inform the employee as soon as possible after the decision has been made of the redundancy and shall discuss with the employee the matters mentioned in s 41(2).

40 The notion that the provision is concerned with rights and duties is borne out to some extent by s 41(2) which speaks of the "matters to be discussed". This suggests that certain matters must be the subject of a discussion, that is to say, the employee is entitled to have a discussion about certain prescribed matters.

41 The matters to be discussed are the likely effect of the redundancy in respect of the employee and measures that may be taken by the employee or the employer to avoid or minimise a significant effect as the case requires. It is quite clear from this that the purpose of the discussion is to look at ways and means of ameliorating the effects of the redundancy upon the employee.

42 Section 18 of the Interpretation Act 1984 requires that a construction that would promote the purpose underlying a written law is to be preferred to a construction that would not promote that purpose. This lends support to the notion that a statutory provision which purports to confer upon the employee an entitlement or right to be informed and to participate in a discussion about certain matters of importance to him does more than require that an opportunity be provided for such a discussion to take place. It imposes upon the employer a duty to inform and to ensure that a discussion about the matters to be discussed occurs.

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43 It may be that in a new era of drafting techniques, the language of rights and duties is thought to be anachronistic. However, for myself, I have to say that I find it difficult to give an intelligible meaning to the provision in question unless an attempt is made to define the responsibilities of the parties by reference to familiar analytical tools. Parliamentary enactments are essentially prescriptive. For a provision to say simply that there shall be a discussion without making it clear whether any party is obliged to initiate the discussion would be vacuous. To give the words a meaning, one must look at the provision as a whole and in this case the tenor of the language used is that the employer is obliged to take certain steps with a view to ameliorating the effects of the redundancy, such steps being essentially the prompt provision of information about the decision and the initiation of a discussion which may be of some assistance to the employee in dealing with the consequences of the decision.

44 The effect of s 5 of the Minimum Conditions of Employment Act is to make the steps to be taken a condition of the contract of employment. This too suggests that it is appropriate to construe the language used in s 41 by reference to the usual normative framework of contractual obligations. On any view of the matter, the statutory provision does not expressly oblige the employee to initiate the discussion, although it would be open to him to do so. If it were the intention of the draftsman to go no further than to require that the employer provide an opportunity for discussion, without being obliged to ensure that a discussion occurs, one would expect to find a clear statement to that effect. As it is, the provision clearly contemplates that there will be a discussion about the "matters to be discussed". In the context of a provision which purports to be conferring a benefit upon the employee, this must lead to a conclusion that the employer will initiate a discussion about the matters to be discussed.

45 Let me now return to the circumstances of the present case.

The Present Case

46 Commissioner Wood refers at par 30 of his reasons to evidence that the decision to terminate the appellant was made by the General Manager, Mr Arndt, on Mr Ryan's recommendation, the night before the appellant was terminated. Mr Ryan said in evidence that during the discussion on termination Mr Garbett was offered use of a car for a week and to work out his notice but rejected these offers. The Commissioner was convinced (at par 44) that the decision to make the appellant redundant was driven by cost motives following the review led by Mr Ryan. He was sure that

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the decision to choose the appellant as opposed to other purchasing staff was due to the fact that the appellant's salary was more than the other staff and his performance was judged as below the standard required.

47 It was against this background that the Commissioner found that the respondent had discharged its burden of proof. The respondent had established that there was a valid redundancy and that the appellant's duties were picked up by the remainder of the staff in purchasing. The Commissioner considered, on the evidence, that the appellant was offered the opportunity to work out his notice. He found (at par 56) that in relation to whether another employee should have been chosen for redundancy, the appellant had not proven his case.

48 When the Commissioner turned to s 41 of the Minimum Conditions of Employment Act and the obligation to inform and possibly to discuss, he clearly accepted that Mr Arndt agreed to the appellant's redundancy late on 17 May 2000 and that the appellant was advised of the discussion at the meeting on the morning of 18 May 2000. The Commissioner concluded that while the respondent "has not been sufficiently careful" he (the Commissioner) was not prepared to hold that the provisions of the Minimum Conditions of Employment Act had been infringed.

49 In the final paragraph of his judgment, the Commissioner addressed the appellant's contention that the termination was contrary to the provisions of the Act and lacked fairness because no discussion was held with the appellant to ascertain his thoughts on being made redundant, or why he was chosen for redundancy as opposed to someone else. The Commissioner dealt with the latter issue by referring to his earlier finding that the appellant had not proved his case in regard to this issue. He then went on to say that whilst he considered that a greater level of discussion with the appellant would have been appropriate, he did not consider that the appellant's selection for redundancy was unfair, harsh or oppressive.

50 It emerges, then, from this review of the judgment, that the Commissioner was apparently prepared to hold that on 18 May 2000 there was some discussion concerning an offer made to the appellant that he could work out his notice. The findings do not suggest that there was any discussion concerning other matters. More particularly, there is nothing in the findings to suggest that the respondent employer initiated a discussion about the matters described in s 41(2) as the matters to be discussed or that such matters were discussed, save to the extent that some exchanges about the appellant working out his notice might arguably be

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regarded as a matter bearing upon the likely effect of the redundancy upon him.

51 Further, it is clear that the only discussion of any kind that took place after the decision to terminate was made on 17 May 2000 was at the brief meeting on the following day, 18 May 2000, at which the appellant was handed a letter effecting the termination. The letter of 18 May 2000 in its terms certainly does not contemplate that there was to be any discussion directed to matters of the kind referred to in s 41(2) of the Minimum Conditions of Employment Act, or that the employer had its obligations in that regard in mind.

52 The Full Bench addressed these issues in dealing with ground 4 of the appeal before it. President Sharkey was of the view at par 74 of his reasons that the matters which the appellant was entitled as an employee to discuss were the likely effect of the redundancy and measures that might be taken by the employee or the employer to avoid or minimise a significant effect as the case requires. The learned President was of the view that the appellant did not raise the matters he was entitled to discuss. He went on to say this at par 79:

"79. Next, Mr Garbett did not seek to discuss the measures that might be taken by either the employer or employee to minimise the effect of the action although the officers of the employer might clearly be held to have attempted to have done that by at least referring to offers to work out the notice and to provide the company car. It is quite clear, and it was open to so find, that Mr Garbett was anxious to make a clean break, and did. For those reasons, it is quite clear, and the Commissioner at first instance was correct in finding, that the employee, Mr Garbett, was informed in accordance with the MCE Act of the redundancy as soon as practicable after the decision was made, and was afforded an opportunity to discuss the matters required by the MCE Act, to be discussed, of which opportunity he did not avail himself of. In our opinion, the notice was given as soon as 'reasonably practicable' because the word 'practicable' might be paraphrased in the context of the section to provide that the notice is capable of being given in the circumstances of the case at a particular time. What is reasonably practicable is, in our opinion, a matter of fact to be determined upon the whole of the circumstances of

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the case, and in all of the circumstances of this case it could not be at all properly said that the notice was not given, being given the next day after the decision was made, as soon as it was reasonably practicable (see the discussion of the phrase 'reasonably practicable' in Lansdell v Reed (1981) 28 SASR 253 at pages 254-256 per Walters J."

53 This passage suggests that it is sufficient for an employer to inform the employee of the decision and then to afford to the employee an opportunity to discuss the matters mentioned in s 41(2), namely, the likely effects of the action or the redundancy in respect of the employee and measures that may be taken by the employee or the employer to avoid or minimise a significant effect.

54 In my view, as I foreshadowed in my earlier observations, this reveals a misconception as to the nature of the obligations imposed upon the employer by the statutory provision. It is significant that s 41(2) speaks of "the matters to be discussed". This suggests that the employer has an obligation to raise the matters for discussion and to ensure that the relevant points are in fact covered. Further, and in any event, in the case of remedial legislation of this kind which is obviously designed to ameliorate the effects of redundancy to some extent, the provision clearly requires that there be a discussion.

55 To my mind, if the employee remains silent, possibly because of shock or diffidence or ignorance about his statutory entitlement, it is not open to the employer to leave the matter in abeyance. The employer must ensure that a discussion of the prescribed kind takes place, so that the employee will be able to draw the employer's attention to any considerations that may have been overlooked such as, adverse effects upon the employee or measures that might be taken to avoid or minimise the effect.

56 When the provision is viewed in this light it becomes apparent in the circumstances of the present case that the findings made by Commissioner Wood, which were subsequently approved by the Full Bench, are not sufficient. There are no findings to the effect that at the meeting on 18 May 2000 that any person on behalf of the respondent employer took positive steps to ensure that there was a discussion concerning "the matters to be discussed", namely, the likely effects of the redundancy in respect of the employee and measures that might be taken

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by the employee or the employer to avoid or minimise a significant effect as the case requires.

57 The findings of the Commissioner suggest that if a discussion of the required kind had taken place then the appellant might have had difficulty in mounting a persuasive case (as he had difficulty in mounting such a case at a later stage before the Industrial Relations Commission) that someone else should have been chosen for redundancy or that he should have been given another position. However, for present purposes, the crucial question is whether the findings made by the Commissioner establish that a discussion of the required kind took place. There do not appear to be findings to that effect. Indeed, the findings, such as they are, are ambiguous because they suggest that the only matter under discussion was whether the employee could work out his period of notice.

58 If, as appears to be the case, the discussion was confined to the issue of working out the period of notice, that does not appear to be a sufficient compliance with the statutory requirement. I have noted already that the letter dated 18 May 2000, in its terms, is compelling evidence that the employer was not minded to initiate a discussion of the required kind and did not do so. I therefore consider that the appellant has made out ground 4(d) of the grounds set out in the notice of appeal before the Industrial Appeal Court.

59 Ground 4(e) asserts that the Full Bench erred in law in failing to give proper consideration to and to provide adequate reasons for its findings that the appellant waived his right to discuss the adverse effects of his redundancy at the meeting of 18 May 2000. Counsel for the appellant did not identify precisely which passages of the judgment of President Sharkey amounted to a finding that the appellant had waived his rights. However, in essence, I understood counsel for the appellant to be relying upon reasoning of the kind reflected in par 79 of the judgment mentioned above, and upon similar passages in which reference was made to the notion that the appellant did not avail himself of the opportunity supposedly afforded to him on 18 May 2000 to discuss matters of concern.

60 If these passages are to be characterised as a finding of waiver, I am of the view that such a waiver cannot be relied upon by the respondent in the circumstances of the present case. A waiver generally requires that the party said to be waiving is aware of his entitlements and makes a conscious determination not to insist upon his rights. There was no evidence in the present case that the appellant had the required degree of

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knowledge as at 18 May 2000. Further, and in any event, as I noted in my review of the statutory provisions, s 5(4) of the Minimum Conditions of Employment Act provides expressly that a purported waiver of a right under this Act has no effect. Accordingly, to the extent that it might be thought that Commissioner Wood and the Full Bench found against the appellant upon the basis of a waiver of rights, I consider that such a view should be regarded as an error of law.

61 I noted in earlier discussion also that by s 5(1) the minimum conditions of employment extend to and bind all employees and employers and are taken to be implied in a contract of employment. A minimum condition of employment is defined to include a condition prescribed by Pt 5 of the Act such as the obligation to inform and discuss set out in s 41 which lies within Pt 5 of the Act. If one arrives at the conclusion that s 41 has not been complied with, in that no sufficient discussion has taken place, then it follows in the circumstances of the present case that the respondent employer was in breach of an implied condition of the contract of employment at the time the termination was effected.

62 Such a conclusion does not lead inevitably to the further conclusion that the employee, in this case the appellant, has been subjected to an unfair dismissal and is entitled to relief pursuant to the relevant provisions of the Industrial Relations Act. It emerges from my review of the decided cases that a decision to dismiss in the context of redundancy is a discretionary decision. If the employer failed to take account of or give proper consideration to its obligations under s 41, as appears to be the case, then the exercise of the discretion could arguably be held to have miscarried. However, for the reasons given by Heenan J, I consider that the question of whether or not there was harsh, oppressive or unfair dismissal in the present case depends on whether the breach of the implied term caused any loss or injury to the appellant by reason of the manner in which the related termination was implemented. With respect, I agree with his view that findings will be required as to whether any identifiable loss was caused and whether the likely effects of the redundancy might have been avoided or minimised by discussion.

63 I noted in earlier discussion that, by his initial application, the appellant sought reinstatement or, alternatively, 26 weeks compensation in lieu of reinstatement. However, the approach of the Industrial Appeal Court in relation to the question of relief is governed essentially by s 90(3) of the Industrial Relations Act which provides that on the hearing of the appeal the Court may confirm, reverse, vary, amend, rescind, set aside or

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quash the decision the subject of the appeal and may remit the matter to the President, the Full Bench, or the Commission in Court Session, as the case requires, for further hearing and determination according to law.

64 Section 90(3a) being an amendment that took effect on 1 August 2002, now provides that if any ground of the appeal is made out but the Court is satisfied that no injustice has been suffered by the appellant or a person who is a member of or represented by the appellant, the Court shall confirm the decision the subject of the appeal unless it considers that there is good reason not to do so. I do not see that provision as having any application in the circumstances of the present case.

65 For the reasons I have given previously, I consider that the appellant is entitled to succeed in his appeal in respect of his contention that the respondent employer failed to comply with the obligation to inform and discuss imposed upon the employer by s 41 of the Minimum Conditions of Employment Act. However, it will be apparent from my reasoning, that this conclusion flows essentially from a lack of any clear finding as to what discussion, if any, took place on 18 May 2000 at the meeting between representatives of the employer and the appellant shortly before the termination took effect.

66 I am generally in agreement with the views of expressed by Heenan J concerning damages and his conclusion that where relief is claimed for harsh, oppressive or unfair dismissal the court or tribunal should concentrate on the overall effect of the dismissal in its context rather than treating the issue as concluded by the establishment of any breach by the employer of the terms of the contract of employment however inconsequential. It therefore seems to me that the appropriate disposition of the present case is for the decisions made by the Commissioner and the Full Bench to be set aside to the intent that the matter will be remitted to Commissioner Wood for a determination to be made as to whether the appellant is entitled to relief having regard to the reasons of the Industrial Appeal Court and any further findings that are made. If the appellant is found to be entitled to relief it will be for the Commissioner to determine the appropriate form of the relief. I agree that orders should be made in the terms proposed by Heenan J.

67 EM HEENAN J: The course of this litigation originating with the appellant's application to the Industrial Relations Commission for relief against alleged unfair dismissal by the respondent, the decision of Commissioner Wood at first instance, and the subsequent decision of the Full Bench in the Industrial Relations Commission dismissing the

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appellant's appeal from the rejection of his claim by Commissioner Wood have all been fully described in the reasons for decision of Hasluck J. I have had the great advantage of reading these in draft. His Honour has also described the issues which arose at the earlier stages of the proceedings and on this appeal and has identified all the material findings made by the Industrial Relations Commission, both at first instance and on appeal. With respect, I agree with the analysis and summary of the background of the dispute and of the proceedings in the Commission which had been described by his Honour and I gratefully adopt them. This allows me to proceed directly to what I consider to be the issues arising on this appeal.

68 I also agree that the only issues of law raised by the appellant, despite his numerous efforts to clothe issues of fact as issues of law, are the questions of whether or not the respondent's termination of the employment of Mr Garbett which was effected on 18 May 2000 constituted any breach by the respondent of obligations imposed by the Minimum Conditions of Employment Act (1993) (MCEA) and, if so, what are the consequences for the parties in these present proceedings of such a breach. In my view these questions require a consideration of the scope of the jurisdiction of the Commission in dealing with claims for unfair dismissal where the facts establish that the applicant's employment has been terminated because of redundancy and what are the rights or entitlements of an employee where attention is being given by his employer to dismissing him or her because of redundancy. That leads on to a consideration of the place of the Minimum Conditions of Employment Act and its effect in the present situation.

69 The jurisdiction of the Commission to enquire into and deal with any industrial matter is conferred by s 23(1) of the Act which expressly recognises that this includes a claim of harsh, oppressive or unfair dismissal - s 23(3)(h), but in such a case the orders which the Commission may make are restricted to those authorised by s 23A.

70 A claim for relief by an employee alleging that he or she has been harshly, oppressively or unfairly dismissed from his employment can be referred to the Commission by the employee himself or herself - s 29(1)(b)(i). It has long been recognised that s 29 does not enlarge or diminish the general jurisdiction of the Commission to deal with any industrial matter as conferred by s 23(1), but is an express recognition that a claim for relief by an employee for an alleged harsh, oppressive or unfair dismissal is within the general jurisdiction of the Commission - Coles Myer Ltd v Coppin & Ors (1993) (1993) 11 WAR 20; 73 WAIG

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1754 and Dellys v Elderslie Finance Corporation Ltd [2002] WASCA 161 - IAC. Similar, but not identical, avenues for redress are conferred in the industrial legislation of all other States, except Victoria, and in the federal jurisdiction, including the Territories, by Commonwealth legislation. Employees in the State of Victoria have access to the rights conferred by the Federal legislation by reason of the reference by Victoria of these powers to the Commonwealth - Commonwealth Powers (Industrial Relations) Act 1996 (Vic), the Constitution s 51(xxxvii) and Workplace Relations Act 1996 (Cth) s 492. The unfair dismissal laws were first introduced into federal industrial legislation in March 1994. The absence of such provisions, before that date, explains various unsuccessful attempts by individual employees or unions to seek equivalent remedies by searching for implied terms in the contract of employment in cases such as Byrne & Frew v Australian Airlines Ltd (1995) 185 CLR 410. As I shall endeavour to explain, the nature and significance of terms implied in a contract of employment in Western Australia by the MCEA have an important bearing on this case.

71 The references to "harsh, oppressive or unfair" dismissal in s 23, s 23A and s 29 should be understood as the use of essentially non-technical words designed to cover a range of situations where, while there is an overlap between them, the gist of each will go to differing matters. It has been said that no redefinition or paraphrase of the similar test "harsh, unjust or unreasonable" as it appeared in the Manufacturing Grocers' Award 1985 is desirable - Bostik (Australia) Pty Ltd v Gorgevski (No 1) (1992) 36 FCR 20 at 28 per Sheppard and Heerey JJ, which was cited with approval by McHugh and Gummow JJ in Byrne & Frew v Australian Airlines Ltd (supra) at 476. A dismissal may be harsh, oppressive or unfair notwithstanding that it did not constitute a wrongful dismissal at law. In other words, a harsh, oppressive or unfair exercise of the legal right to dismiss an employee may give rise to an entitlement for relief under s 23A, although this will not necessarily be the case. A full examination of the features of the particular case must always be undertaken to assess the nature and effect of the dismissal in its particular context. For one of many examples where the exercise by the employer of the right of dismissal at law was upheld, but the termination of employment was nevertheless held to be harsh, oppressive or unfair - see FDR Pty Ltd & Ors v Gilmore & Ors; Gilmore v Cecil Bros & Ors (1998) 78 WAIG 1099, IAC, especially per Kennedy J and per Anderson J.

72 Because there is such a wide variety of factors which may affect any individual case, no universal or exhaustive list of the circumstances which

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may constitute harsh, oppressive or unfair dismissal can be given. Often, however, the issue in a particular case will require a consideration of the length or quality of the employee's service, the culture of the workplace, the prospects for other employment of the individual employee, and the employer's treatment of past incidents and of other employees. Where misconduct is alleged or relied upon there will be a burden on the employer to demonstrate that the alleged incident did occur and also to evaluate any mitigating circumstances. Factors such as these going to the reasons for the particular dismissal are frequently referred to in the authorities in this area as matters of "substantive" fairness, as opposed to issues of "procedural" fairness which relate to the manner in which the employee was notified of the proposed termination, what opportunity, if any, he or she was given to respond and the time and method employed in effecting the termination. This distinction between substantive and procedural issues going to the question of whether or not a particular dismissal was harsh, oppressive or unfair can be useful in certain cases but it entails the danger of regarding the statutory test as having separate application and different meanings in different contexts. Such an approach must be rejected because, however the issue may arise, the decision for the Commission, or a court in any particular case, is simply whether the individual termination of employment was harsh, oppressive or unfair and that test must always be applied without any gloss. For a criticism of how the distinction between procedure and substance in this area is elusive and how it may be unhelpful and contrary to the true meaning of the statutory phrase, see McHugh and Gummow JJ in Byrne & Frew v Australian Airlines Ltd (supra) at 465.

73 In this State a test which has been adopted by the Commission, and approved by this Court, is to consider whether the dismissal amounted to an abuse of an employer's right to dismiss thus rendering the dismissal harsh or oppressive - Bogunovich v Bayside Western Australia Pty Ltd (1998) 78 WAIG 3635; Miles v Federated Miscellaneous Workers' Union of Australia, Hospital Service and Miscellaneous (WA) Branch (1985) 17 IR 179; 65 WAIG 385, IAC and Robe River Iron Associates v The Association of Draughting, Supervisory and Technological Employees, WA Branch (1987) 76 WAIG 1104, IAC. In cases where the alleged harsh, oppressive or unfair nature of the dismissal relates to the procedure followed by the employer in effecting the termination of employment it has been held in this State that a failure to adopt a fair procedure by the employee can lead to a finding that the dismissal was harsh, oppressive or unfair - Bogunovich v Bayside Western Australia Pty Ltd (supra), but a lack of procedural fairness may not automatically

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have this result - Shire of Esperance v Mouritz (No 1) (1991) 71 WAIG 891 IAC.

74 Quite obviously there must be situations when an employer is entitled to exercise his legal right to terminate the employment of an individual employee, in accordance with the terms of the particular contract of employment, although there has been no serious misconduct or other breach of the terms of the contract of employment by the particular employee. The need to terminate a contract of employment may arise because of some change in the nature of the employer's business, or a shift of business location, or some restructure genuinely considered by the employer to be necessary for the improvement or refinement of its business operations or for some other reason quite independent of the performance of the individual employee or employees. Terminations of employment for these reasons are often described as being because of redundancy, a term of somewhat variable meaning depending upon the context and circumstances. Although the Industrial Relations Act does not contain any reference to "redundancy" the concept has long had a recognised application for termination of employment as a sufficient justification by an employer for a single decision or a series of decisions to dismiss employees. Nor is there any express reference to "redundancy" in the Federal legislation - Workplace Relations Act (1996), although that Act does refer to the "operational requirements of the employer's undertaking, establishment or service" - s 170CG(3)(a). A similar phrase was once contained in the Western Australian legislation in s 23AA, introduced by Act No 39 of 1995 but repealed by Act No 3 of 1997. That section, as it stood before its repeal, created an onus of proof on the employer to show that there was a ground or grounds upon which the Commission could find that a challenged dismissal was justified, failing which, a claim by an employee affected for harsh, oppressive or unfair dismissal was to be taken to have been established. Significantly, the section provided that, in respect to this onus imposed upon the employer, a dismissal would be justified "if there was a valid reason, or were valid reasons, connected with the employee's capacity or conduct, or based on the operational requirements of the undertaking, establishment or service, for the dismissal". Despite the repeal of that section in 1997, I consider that the reference to "the operational requirements of the undertaking, establishment or service" of the employer was a recognition of what, by then, as it still remains, was a well recognised acceptance of the notion of redundancy in this setting.

75 That there may be genuine operational reasons rendering a particular employee redundant, which of themselves would justify an employer in

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terminating the employment of that individual employee, yet, because of the manner in which the termination was effected, the overall result can produce a harsh, oppressive or unfair dismissal has also long been recognised. FDR Pty Ltd & Ors v Gilmore & Ors; Gilmore & Anor v Cecil Bros & Ors (1998) 78 WAIG 1099 IAC, as already noted, is one example which recognises such a situation, notwithstanding that the case involved a bona fide redundancy, and also Kenefick v Australian Submarine Corporation Pty Ltd (No 2) (1996) 65 IR 366 (IRC of Aust).

76 In this State it has been held that the circumstances in which a redundancy will occur include not only the abolition of the job in question, but also when a workforce is reduced because there is labour in excess of that reasonably required to perform the work which is the employer's business - Gromark Packaging v Federated Miscellaneous Workers Union of Australia, WA Branch (supra) per Franklyn J at 107. There being no definition of the term "redundancy" within the Industrial Relations Act (1979), and because the concept is associated with the operational requirements of the enterprise of the employer I do not consider that it would be right to impose any narrow or technical limitation to the concept of redundancy in the setting of claims for relief from alleged harsh, oppressive or unfair dismissal under s 29 of the Industrial Relations Act. That there is some definition of the concept of redundancy in the Minimum Conditions of Employment Act (1993) is another matter which needs separate consideration and evaluation and is discussed later in these reasons. It is therefore important to consider the meaning and recognition which has been given to the concept of redundancy under other similar Australian industrial legislation. In R v Industrial Commission of South Australia; Ex parte Adelaide Milk Supply Co-Operative Ltd (1977) 16 SASR 6 Bray CJ held that a redundancy occurs where an employer no longer requires that work to be performed by anyone. It has been recognised, however, that it is not essential for all the work to have disappeared and that organisational restructuring may result in a position being abolished and the functions of that position being divided or given to others - Bunnett v Henderson's Federal Spring Works Pty Ltd (1989) 31 AILR 356.

77 Other examples of harsh, unjust and unreasonable or oppressive dismissals, notwithstanding a genuine redundancy, have been found where the employee is provided with no meaningful information about the reasons for the termination and no discussions are held with him or her with regard to the termination - Gibbs v City of Altona (1992) 37 FCR 216; where there had been no exploration of possible alternatives with the applicant before the ultimate step of termination in order to remove the

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need for dismissal - Gregory v Philip Morris Ltd (1988) 80 ALR 455 at 473; where there is a failure to apply fair and objective selection criteria in determining which employee is to be made redundant - Budget Couriers Equity Management v Beshara (1993) 5 VIR 173; where there has been no proper investigation of the facts or consultation with the employee about those facts and their consequences - Byrne & Frew v Australian Airlines Ltd(1994) 47 FCR 300 per Beaumont and Heerey JJ at 63 and Budget Couriers Equity Management v Beshara (supra); and where there has been a failure to provide adequate notice - Budget Couriers Equity Management v Beshara (supra). In the category of cases where it is alleged the harsh, oppressive or unfair feature of the termination, notwithstanding a redundancy, is due to the employer's failure to apply fair and objective selection criteria in determining which employee is to be made redundant, the onus will be upon the employee to show that the selection criteria adopted were unfair: Quality Bakers of Australia Ltd v Goulding; Wickham v Quality Bakers of Australia Ltd (1995) 60 IR 327 per Beazley J at 337 and Gromark Packaging v Federated Miscellaneous Workers Union of Australia, WA Branch (supra).

78 In the present case I agree, with respect, with Hasluck J that the decision to dismiss the appellant, Mr Garbett, was due to a genuine redundancy at the respondent's business and that no error of law or principle has been shown in the finding by the Industrial Commission, at first instance or by the Full Bench on appeal, that this was a case of a real redundancy. I also accept that no error of law has been shown in the findings below that there was a genuine reason by the respondent to select Mr Garbett as the individual who should be retrenched in order to accommodate that redundancy or, perhaps more properly, that no case has been established by the appellant that there was any failure to apply fair or objective selection criteria by the respondent in selecting him for termination in order to give effect to that redundancy. However, that still leaves open the question of whether, notwithstanding that there was a genuine redundancy and that the employer was lawfully entitled to terminate the appellant, this dismissal was nonetheless harsh, oppressive or unfair having regard to the manner in which it was implemented.

79 In accordance with the authorities already cited it is necessary to give consideration to all features of the employment relationship between the appellant and the respondent. Perhaps the most obvious, and important, starting point is to identify the terms of the contract of employment which existed between the parties. There is no written contract of employment in evidence in these proceedings, nor any finding made by Commissioner

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Wood or by the Full Bench about the express terms of the contract of employment. The Full Bench, however, did find that:

"Mr Garbett was employed as Senior Purchasing Officer by the respondent and, in fact, was employed by the respondent, a manufacturer of bricks and other material, from 11 May 1994 to 18 May 2000. His responsibilities as at 18 May 2000 included directing purchases for maintenance, replacement of motor vehicles, supply agreements for commodities, hire equipment and supply services, eg telephones and property maintenance. He said in evidence that his salary was $54,689 per annum and he was provided with a company car."

There was evidence of a series of variations in the terms of the employment involving periodic increases in salary, and a promotion followed by a demotion. However, importantly, because of the limitation of the jurisdiction of this Court to deal only with issues of law on appeal, there was no finding made as to any express terms of the individual contract of employment which related to termination or redundancy.

80 It is at this point that the provisions of the Minimum Conditions of Employment Act (1993), assume significance.

81 By s 5 of the MCEA the minimum conditions of employment established by the Act extend to and bind all employees and employers and are taken to be implied, in any workplace agreement; in any employer-employee agreement; in any award; or, if a contract of employment is not governed by a workplace agreement, an employer-employee agreement or an award, in that contract. The Act also provides that any provision or condition in a workplace agreement, employer-employee agreement, award or contract of employment that is less favourable to the employee than a minimum condition of employment implied by the Act has no effect and that any provision in such an agreement or arrangement purporting to exclude the operation of the Act has no effect, except to the extent that limited contracting out of annual leave conditions or of the minimum wage entitlement is permitted by s 8 and s 9 of the Act. Section 5(4) provides that any purported waiver of a right under the Act has no effect. The minimum conditions set by the Act relate to rates of pay (ss 11 - 17), sick leave (ss 19 - 22), annual leave (ss 23 - 26), bereavement leave (s 27 and s 28), public holidays (ss 29 - 31), parental leave (ss 33 - 39), notification of changes to employment with significant effect and redundancy (s 41) and job interview leave (s 43).

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82 The MCEA establishes certain offences under Pt 6 relating to the keeping of certain records by employers and the provision of access to those records by the employer to persons entitled. Exclusive jurisdiction to hear and determine complaints for those offences in accordance with the Justices Act 1902 is conferred on an Industrial Magistrate's Court established under Pt III of the Industrial Relations Act, and this jurisdiction cannot be exercised by any other court except where an appeal lies to that other court - s 46.

83 The enforcement of the rights conferred by the minimum conditions implied under the Act is dealt with separately in s 7 of the MCEA. This provides that a minimum condition of employment may be enforced:

(a) where the condition is implied in a workplace agreement, under Division 1 of Part 5 of the Workplace Agreements Act 1993;

(aa) where the condition is implied in an employer-employee agreement, under s 83 of the Industrial Relations Act;

(b) where the condition is implied in an award, under Part 3 of the Industrial Relations Act; or

(c) where the condition is implied in a contract of employment, under s 83 of the Industrial Relations Act as if it were a provision of an award, industrial agreement or order other than an order made under s 32 or s 66 of that Act.

It is to be noted that s 7 does not purport to make any of the avenues of enforcement of the implied conditions, which it mentions the sole or exclusive method of enforcement, unlike s 46 dealing with the determination of complaints for offences under Pt 6 of the Act.

84 In this case, the absence of any finding below as to the express terms of the employment obligations between the appellant and the defendant means that it is not possible to say whether the conditions implied into the obligations between the appellant and the defendant in this case may be enforced under the Workplace Agreements Act or under s 83, or Pt III of the Industrial Relations Act. Generally speaking, it would seem to be desirable in cases dealing with rights implied under the MCEA to identify the workplace agreement, the employer-employee agreement, the award or the contract of employment which contains the mutual obligations of the parties in order to identify the statutory forum specially available for

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its enforcement. In this instance, however, I consider that the absence of such a finding will not affect the outcome of this appeal nor restrict this Court in the consideration of the issues raised by the appeal. This is because no attempt was ever made by the appellant to enforce any condition implied into the employment obligations between himself and the appellant, rather, the only relief sought by the appellant was sought under s 29(1) and s 23(3)(h) for alleged harsh, oppressive or unfair dismissal. Mr Garbett was not seeking enforcement of, or damages for, breach of any condition implied into the obligations between himself and the appellant but, rather, was contending that the breach of the implied condition which he alleged rendered the termination of his employment by the respondent harsh, oppressive or unfair. In other words, if the appellant established that there had been a breach of an implied term, in what I shall call the contract of employment between himself and the respondent, the question would then be, not what damages or other relief the appellant could obtain for breach of an implied condition in the contract of employment, but whether the breach of the implied condition, taken in the context of all other features of the employment relationship, resulted in the termination of employment in the instant case being harsh, oppressive or unfair. That this is a broader enquiry than a determination of the respective legal rights of the parties to the contract of employment, is recognised by the authorities already cited at page 26 and page 27 above and expressly by Walsh J in North West County Council v Dunn (1971) 126 CLR 247 at 263.

85 While it is the case that a dismissal of an employee which does not constitute a wrongful dismissal at law may nevertheless constitute a harsh, oppressive or unfair dismissal, the converse is quite a separate question. If there is a dismissal in breach of the express or implied terms of the contract of employment that will constitute a wrongful dismissal at law and may entitle the wrongfully dismissed employee to damages if loss or damage which it has caused can be proved but not otherwise. Whether such a wrongful dismissal will constitute a harsh, oppressive or unfair dismissal is a different question because the breach of contract may or may not be of such a dimension or magnitude as to result in the dismissal properly being characterised harsh, oppressive or unfair. Obviously, a dismissal which is wrongful because it constitutes a breach by the employer of the terms of the contract of employment is one which may very well be unfair, even if not harsh or oppressive, but I do not regard that as always or necessarily being so. Even if such a wrongful dismissal at law should be characterised as a case of unfair dismissal within the meaning of s 29(3)(h) of the Industrial Relations Act it does not follow

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that the dismissed employee is thereby automatically entitled to relief under s 23A. Leaving aside cases where an order for reinstatement might be made, which are likely to be rare where there has been dismissal for genuine redundancy, issues of the claimant's entitlement to the payment of any moneys due under his contract of employment, or to compensation for the loss or injury caused by the dismissal are discretionary under s 23A of the Act. There can be little doubt that the discretion should be exercised in favour of the claimant where actual loss or damage can be proved, but where no loss or damage is proved, or where any entitlement to damages or compensation is adequately covered by payments made by the employer to the employee at the time of termination, whether as wages in lieu of notice and/or for other accrued benefits, will always be a matter for investigation. If no loss or damage, nor entitlement to compensation for the former employee is established beyond payments which have been made by the employer then there would be no entitlement to redress because the powers conferred under s 23A are intended to compensate the employee who has been harshly, oppressively or unfairly dismissed in respect of losses so caused and no more. They are not a means for punishing the employer or for conferring any windfall gain upon the claimant. This does not mean that the compensation which the Commission may order under s 23A(1)(ba) of the Industrial Relations Act is restricted to the damages which might be recovered at law for wrongful dismissal, but it does mean that payments ordered under s 23A must be in respect of a lawful entitlement and/or as compensation for a demonstrated loss or injury caused by the harsh, oppressive or unfair dismissal.

86 Accordingly, a claimant who can establish that his dismissal has been effected in breach of the terms of his employment, and is thus wrongful at law, may be on the way to establishing a case of harsh, oppressive or unfair dismissal but he will need to establish more than merely this in order to show that the breach of the employment contract was of sufficient gravity or significance to bring it within the scope of s 23(3)(h) and, even then, that he has an entitlement to payment or compensation going beyond any payments which have been received from the employer before relief will be granted under s 23A.

87 As previously noted, the MCEA implies into contracts of employment conditions with respect to action that is likely to have a significant effect on an employee or to make an employee redundant - s 41. The conditions so implied entitle an employee to be informed by his or her employer, as soon a reasonably practicable, of a decision by the employer likely to have a significant effect on the employee or to make the employee redundant. "Significant effect" is defined by s 40(2) and

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includes changes to the composition, size or skills of the employer's workforce; elimination or reduction of a job opportunity, a promotion opportunity or job tenure, significant increase or decrease of the employee's working hours; a requirement for the employee to be retrained or to transfer to another job or work location or for the restructuring of the employee's job. By s 40(1) "redundant" is defined as being no longer required by an employer to continue doing a job because the employer has decided that the job will not be done by any person. In other words, "redundancy" under the MCEA appears to require the elimination of the particular job, not merely its division or distribution between others or some restructuring or relocation which will produce a similar effect. Accordingly, "redundancy", as so defined under s 40, bears a more restricted meaning than the concept of redundancy which has been acknowledged in the cases to justify the termination of an employee. However, I do not consider that this narrower meaning of redundancy in the MCEA produces any material narrowing the power of the Commission on an application for relief in a case of alleged harsh, oppressive or unfair dismissal, not only because a genuine case of redundancy fairly implemented, as understood in the authorities, will remain a justification for the termination of the employment of an individual employee, but also because the wider connotations of "redundancy" as I have understood to be recognised in the cases are, in my view, picked up by the term "significant effect" on an employee, as defined by s 40(2) of the MCEA.

88 The actual condition implied with respect to redundancy, or action likely to have a significant effect on an employee, is set out in s 41 of the Act which is as follows:

"Employee to be informed

(1) Where an employer has decided to -


(a) take action that is likely to have a significant effect on an employee; or

(b) make an employee redundant

the employee is entitled to be informed by the employer, as soon as reasonably practicable after the decision has been made, of the action or the redundancy, as the case may be, and discuss with the employer the matters mentioned in subsection (2).


(2) Matters to be discussed are -

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(a) the likely effects of the action or the redundancy in respect of the employee; and

(b) measures that may be taken by the employee or the employer to avoid or minimise a significant effect,

as the case requires."

The obligation does not require the employer to provide information that may harm the employer's business undertaking (s 42). Where an employee has been informed that he or she has been or will be made redundant, that employee is entitled to paid leave of up to eight hours for the purpose of being interviewed for further employment but that eight hours leave need not be consecutive (s 43).

89 The findings of Commissioner Wood, and the Full Bench, in the present case establish that Mr Garbett was not informed by the respondent of any of his entitlements under s 41(2) and that there was no discussion with the appellant of the likely effects of the action or the redundancy in his respect or of measures that may be taken by the employee or the employer to avoid or minimise a significant effect.

90 It was found by the Full Bench and argued by the respondent on this appeal, that Mr Garbett did not ask for any such information from the appellant, at or after the time his employment was terminated, and that, although there may have been an opportunity at the time of the dismissal and subsequently, for him to approach the employer to discuss the matters which were to be raised with him under s 41(2) he did not do so and that, consequently, there can be no breach by the employer of the implied conditions in the contract of employment established by s 41 of the Act in this particular case. I do not accept those submissions. In the first place they amount only to a contention that, by his actions, the appellant waived compliance with any obligation which the employer had to discuss the likely effects of the redundancy with him and the measures which might be taken to avoid or minimise a significant effect. Subsection 5(4), as already noted, provides that a purported waiver of a right under this Act has no effect. Further, in my opinion, the terms of the condition implied by s 41 of the Act in cases of redundancy or action likely to have a significant effect on an employee, actually require the employer to carry out the discussion with the terminated or affected employee which the condition provides for even where, and perhaps particularly where, the employee is unaware of the existence of that obligation or takes no steps to insist upon its performance. In my respectful opinion this conclusion

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follows directly from a series of decisions of high authority which I shall examine in some detail later and which consider the effect of terms implied into a contract either by statute or by some other mechanism beyond the mutual consensus of the contracting parties.

91 Implication of terms into a contract between parties by statute is a familiar and long-standing example of Parliament providing for basic terms and conditions such as these, or relating to the provision of goods or services in trade and commerce. Well-known examples are terms implied into contracts for the sale of goods under the Sale of Goods Act (1895) and its equivalent legislation, the terms and conditions implied under the Trade Practices Act (1974) s 70 and s 71, the Fair Trading Act (WA), and the Hire Purchase Act among others. In some of these instances, notably with respect to the conditions implied under s 71 of the Trade Practices Act, the terms so implied cannot be excluded or modified and any contract between the parties attempting to produce such an effect will be void - TPA s 68. The provisions of subs 5(3) and (4) of the MCEA each provide that there can be no waiver of a right conferred under that Act and that any provision and any arrangement purporting to exclude the operation of the Act has no effect, so producing the same result. The practical consequence is to import the implied term or condition into the contract between the parties. Consequently, the remedy for breach of the implied term is the remedy or remedies available for breach of the contract and not any remedy which might be available (as for instance damages under s 82 of the Trade Practices Act) for breach of a statutory provision - Arturi v Zupps Motors Pty Ltd (1980) 33 ALR 243; 49 FLR 283. So a breach by an employer of a minimum condition implied by the MCEA is not a breach of a statutory duty nor any breach of the Act but, a breach of the contract of employment between employer and employee. Accordingly, in my respectful opinion, the statutory modes of enforcement of the minimum conditions implied in the MCEA, which are enumerated by s 7 of the Act, constitute additional alternatives to the ordinary remedy of an action for damages for breach of contract in any court of competent jurisdiction. Civil action to enforce the contract may sometimes be the only remedy possible in cases where the employment relationship has been terminated and there is no claim for harsh, oppressive or unfair dismissal and, hence, no longer any "industrial matter" in issue between the contracting parties.

92 Another feature of contractual terms which are implied by statute is that, unlike terms which are implied upon the basis of the presumed or imputed intention of the parties, the meaning, effect and application of the statutorily implied term is determined largely by the provisions of the

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statute which implies the term, having full regard to the need to interpret them with a purposive effect - Interpretation Act s 18. It has been said, of such a statutorily implied term, that the sense of the matter would have been better served by general adoption of the expression - apparently coined by Sir John Salmond (Salmond and Winfield: "Principles of the Law of Contract" (1927) at 47) and used by Dixon J - Shepherd v Felt and Textiles of Australia Ltd (1931) 45 CLR 359 at 378) - "a tacit condition" to identify the latent unexpressed intention of the parties - Byrne & Frew v Australian Airlines Ltd (supra) per McHugh and Gummow JJ at 447. As McHugh and Gummow JJ there proceed to explain at 448 - 451), the construction of such implied terms is approached on the basis that, in their absence, the enjoyment of rights conferred by the contract would or could be rendered nugatory, worthless, or perhaps be seriously undermined, thus giving rise to the concept of the necessity for the existence of the implied term to ensure the preservation of the benefit of the contract. This in turn leads to an approach to the construction of the contract by the court identifying the rights conferred upon the parties and then considering what activity by the person on whom the obligation of the implied term is cast (in this case the employer) would be necessary to avoid the impairment of the essentials of the benefit granted by the implied term.

93 In Scally v Southern Health and Social Services Board [1992] 1 AC 294 (cited with approval in Byrne & Frew - 451 - 452) the appellants were medical practitioners whose terms of employment with Northern Ireland Health Boards had been negotiated by representatives of their professional bodies. They had brought actions against their employers alleging, among other things, breach of contract in respect of failure of their employers to inform them of certain rights which they had enjoyed but which had been exercisable only within a particular period. Lord Bridge of Harwich (at 304) identified the issue as follows:

"The problem is a novel one which could not arise in the classical contractual situation in which all the contractual terms, having been agreed between the parties, must, ex hypothesi, have been known to both parties. But in the modern world it is increasingly common for individuals to enter into contracts, particularly contracts of employment, on complex terms which have been settled in the course of negotiations between representative bodies or organisations and many details of which the individual employee cannot be expected to know unless they are drawn to his attention. The instant case presents an example of this phenomenon arising in the context of the

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statutory provisions which regulate the operation of the health services in Northern Ireland."

In that appeal the House of Lords held that it was a necessary incident of that particular contractual relationship that the employer should, of necessity, notify the employees of the rights in question. As explained by McHugh and Gummow JJ in Byrne & Frew at 452:

"Their Lordships held that, where a contract of employment, negotiated between employers and a representative body, contained a particular term conferring upon the employee a valuable right contingent upon his or her acting as required to obtain the benefit, of which the employee could not be expected to be aware unless the term was brought to the attention of the employee, there was an implied obligation on the employer to take reasonable steps to publicise the term."

It is to be noted that the remarks in Scally (supra) are consistent with the decision of the Privy Council in Tai Hing Cotton Mill Ltd v Liu Chong Hing Bank [1986] AC 80 at 104 - 107 and have since been followed and applied by the Court of Appeal in England in Ali Shipping Corp v Shipyard Trogir [1998] 2 All ER 136.

94 Accordingly, in the present circumstances, I consider that the term implied in all contracts of employment by s 41 of the MCEA that, where the employer has decided to take action that is likely to have a significant effect on an employee or make an employee redundant, the employee is entitled to be informed by the employer as soon as reasonably practicable after the decision has been made, of the action on the redundancy, as the case may be, and the obligation to discuss with the employee the various matters mentioned in s 41(2), actually requires the employer to bring that entitlement to the attention of the employee and to discuss the matters so arising, notwithstanding that the employee may not be aware of the existence of his or her entitlement to be so informed or of the obligation of the employer to discuss the matters provided. In the absence of such an obligation, the statutory provision is likely to have haphazard and random effect depending upon the existence or otherwise of knowledge by the individual employee, at the relevant time, of the effect of s 41. As the section applies to contracts of employment of all kinds, and the Act is designed to provide minimum conditions of employment which will, inevitably, involve many employees at the lower end of the employment scale whose knowledge and experience is likely to be limited, I consider that any different approach would fail to ensure that such employees

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receive the benefit of the statutory provision which its policy demonstrates is a necessary ingredient of their employment.

95 Consequently, in the present case, I consider that the respondent, Midland Brick Company Pty Ltd, was in breach of the implied term of the contract of employment between itself and the appellant, Mr Garbett, in failing to inform him of his entitlements under s 41 of the MCEA and in failing to discuss with him the likely effects of the redundancy in his respect and measures that might be taken by the appellant or by the respondent to avoid or minimise that effect.

96 I also consider that this conclusion is consistent with the earlier decision of this Court in FDR Pty Ltd & Ors v Gilmore & Ors; Gilmore v Cecil Bros (supra); IAC. The issue in that appeal was whether the Full Bench of the Commission had erred in law in concluding that no part of a lump sum payment paid by the employer to the employee in lieu of notice and for redundancy eliminated any loss or damage occasioned to the employee by a breach of the terms of the contract implied to the MCEA. This Court, comprised by Kennedy, Franklyn and Anderson JJ, held that there had been no such error and that payment of an amount specifically assigned by the employer to salary in lieu of notice and redundancy, did not constitute a payment for damages for breach of an implied term under the MCEA. The disposition of this issue was summarised by Anderson J (at 10) in the following terms:

"The Full Bench expressly adverted to the payment made by the employer and expressly acknowledged that it was a circumstance to be taken into account in the exercise of discretion whether to make an order for compensation under the subsection. It is clear that the power to make an order under the subsection was not precluded by the events which had happened. The fact that an employer has made a generous termination payment does not preclude the Commission exercising its discretion under the subsection to make an award of compensation for loss or injury in a case where the dismissal was unfair. Hence, the discretion to make an order remained and it is a very wide discretion. I am not persuaded that it is shown to have miscarried merely because a large termination payment had already been made by the employer. Whilst that payment may have been sufficient to satisfy Mr Gilmore's common law entitlement, had he been able to show that he was wrongfully dismissed, that does not mean that nothing is left on which to properly exercise a discretion to award compensation

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under the subsection. Anyway, it seems to me that the question whether an employee who has been unfairly dismissed or his dismissal has been effected in a harsh or oppressive manner has been fully compensated for all his loss and injury caused by the dismissal is a matter of assessment and therefore entirely a question of fact."

Gilmore's dismissal was held to have been harsh, oppressive or unfair by the Commission because of a failure by the employer to comply with the obligations of s 41 of the MCEA in failing to participate in a discussion with the employee about the likely effects of the redundancy. The decision of the Full Bench and of this Court on this issue proceeded on the basis that there was a positive obligation on the employer to comply with the terms of the contract implied by s 41. As explained by Kennedy J at 5:

"A further issue was raised, however, regarding the entitlement of Mr Gilmore under s 41 of the Minimum Conditions of Employment Act 1993 to be informed as soon as reasonably practicable after the decision had been made to make him redundant and to participate in a discussion of the likely effects of the redundancy and of measures that might be taken by Mr Gilmore or FDR Pty Ltd to avoid or minimise a 'significant effect'. That entitlement constituted a minimum condition of employment - see the definition in s 3 of the Act, which is to be read into s 41 (which appears in Pt V of the Act). The condition was therefore taken to be implied in Mr Gilmore's contract - see s 5(1)(c) - and the failure of FDR Pty Ltd to consult with Mr Gilmore amounted to a breach of the contract of employment. The terms of s 7 of the Act relied upon by counsel for FDR Pty Ltd, dealing with the enforcement of minimum conditions, was not material. For the present purposes the significant matter was that FDR Pty Ltd was in breach of the contract.

The discussion on 1 June 1995 between Mr Gilmore, Mr Breckler and Mr Boskell was found by the Commissioner not to comply with s 41 and there was ample evidence to sustain this finding. Mr Gilmore was clearly not informed as soon as reasonably practicable after the decision regarding his redundancy had been made. Nor was there any attempt made to discuss measures which might be taken to minimise a 'significant effect'. But, in any event, this was only one of the

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factors which led the Commissioner and the Full Bench to conclude that Mr Gilmore's dismissal had been harsh, oppressive or unfair."

It is important, however, to note that in Gilmore's case, although the employer had sought to justify the termination on the basis of redundancy, the Commission found that it was not a case of genuine redundancy and that finding was upheld by the Full Bench and this Court on the appeals.

97 Returning to the circumstances of this appeal, it follows that while Mr Garbett's employment was terminated by the respondent because of a genuine redundancy, the termination was effected in a manner which constituted a breach of the terms of the employment contract because of the failure to comply with the obligations to inform and discuss imported into that contract by s 41 of the MCEA. One consequence of that breach of contract is to entitle Mr Garbett to recover from his employer any damages which he has suffered and which have been caused by that breach, the onus being upon him to prove the causation, existence and amount of any such damage. By contrast, the issues which arose before the Commission on the proceedings instituted by the appellant were whether, in all the circumstances, the dismissal of the appellant from his employment was harsh, oppressive or unfair, and if it were, whether the appellant was entitled to the payment of any amount, or compensation for the loss or injury caused by the dismissal, or whether he should be reinstated or re-employed, or whether there should be any ancillary or incidental relief to give effect to any other order for relief - Industrial Relations Act s 23A. The decision by the Commission about whether or not the dismissal was harsh, oppressive or unfair was required to take into account all the features of the case including the express and implied terms of the employment as well as the impact of the decision upon Mr Garbett himself.

98 Because Commissioner Wood and the Full Bench concluded that there had been no breach, by the respondent, of the terms of the appellant's contract of employment as implied by the MCEA in this case, the decisions below failed to address the vital issue of whether, in these circumstances where there was such a breach of contract, the dismissal was, for that reason, and in effect harsh, oppressive or unfair. By failing to address this issue I consider that there was an error of law in the decisions both of the learned Commissioner at first instance and of the Full Bench and that, as a result, there has not been a determination of the appellant's claim according to law. Had that issue been addressed below it would, in my opinion, have been necessary for the Commission to make

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findings about the effect of that breach of contract in this particular case, especially having regard to any consequences which it may have caused to the appellant which he asserted caused him loss or damage. Such an exercise would inevitably have required the Commission to make further findings of fact about the effect of this breach of contract upon the appellant and the gravity of any consequences for him in the particular situation. It would also be necessary, in my opinion, for the Commission to make findings of fact about the consequences of this breach of contract in a situation where, had the termination of employment been carried out in a manner which complied with the terms of the contract of employment, as indeed the Commission has already found would have been justified, whether the course which was followed by the respondent by acting in breach of contract produced loss or damage for the appellant which would not, otherwise, have occurred. Only when findings of fact of this nature are made will it be possible to determine the appellant's claim finally by deciding whether or not, in all the circumstances, his dismissal was harsh, oppressive or unfair, and, if it were, whether the appellant has suffered any loss or damage in respect of which compensation or other relief should have been ordered under s 23A.

99 These issues were not addressed below and this Court is not entitled to review the evidence in order to make findings of fact, for the first time, which were not made by the Commission. This Court is restricted to dealing with grounds of appeal which contend that the decision below is erroneous in law or is in excess of jurisdiction - s 90(1). Although this Court has power to confirm the decision of the Commission, even where a ground of appeal is made out but this Court is satisfied that no injustice has been suffered by the appellant, that power cannot be invoked in the present circumstances. This is because, in the absence of findings by the Commission about the consequences and effects of this breach of contract by the respondent, and in particular what, if any, loss or damage it has caused to the appellant, it is not possible to decide, according to law, whether this dismissal was harsh, oppressive or unfair or, if it were, whether the appellant is entitled to any particular form of relief. Only the Commission can make those findings and, as the appellant has, in my respectful view, made out his case that there has been an error of law by the Commission, I consider that the appeal should be allowed and the claim remitted to the Commission for further hearing and determination in conformity with the decision of this Court.

100 As this is likely to necessitate a further hearing before the Commission it is perhaps desirable that I expand on the course which I consider needs to be followed in order to determine the appellant's claim

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according to law. One very significant feature of this case is that the employer had restructured its workforce so producing a genuine redundancy where objective factors had led inexorably to the conclusion that it was the appellant, rather than any other employee, who should be retrenched. As the Commission found, this means that the employer was entitled to terminate the employment of the appellant for the reasons given and that, for the same reasons, reinstatement was not appropriate or practicable. That reduces the controversy to whether, in this particular case, the procedure followed in implementing the dismissal and its consequences, involving as they did a breach of the terms of the contract of employment, were harsh, oppressive or unfair - a judgment which must be made in the knowledge that grounds for the termination existed and retention of the benefit of the employment relationship by the appellant was no longer possible. It is also a decision which needs to be made in the knowledge that the appellant was paid all the salary and benefits to which he was entitled under his contract of employment, including a payment in lieu of notice. In these circumstances, the vital question of whether or not there was a harsh, oppressive or unfair dismissal, would appear to depend upon whether the breach of the implied terms of the contract of employment caused any loss or injury to the appellant by reason of the manner in which that inevitable termination was implemented.

101 In my view, this decision will require a finding to be made about whether the failure of the respondent to observe its contractual obligation to inform Mr Garbett of the action on the redundancy and to discuss the matters required by the term of the contract imported by s 41(2) of the MCEA resulted in any identifiable loss or damage for the appellant, such as the loss of a real opportunity to take up some alternative position with the respondent, or to apply for, or obtain, another employment opportunity elsewhere. It also seems to require a finding to be made whether the likely effects of the redundancy might have been avoided or minimised by any discussion which the employer should have initiated but, in breach of its contract, failed to do.

102 Earlier in these reasons I have observed that the measure of damages at law for wrongful dismissal of an employee is not necessarily the same as an employee's entitlement to compensation or other relief under s 23A of the Industrial Relations Act for a case of harsh, oppressive or unfair dismissal even though, in both instances, the principle underlying the measure of relief to be granted is compensatory and not punitive. Indeed, FDR Pty Ltd & Ors v Gilmore; Gilmore v Cecil Bros & Ors (supra) is an example of where a large severance payment made by the employer did

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not discharge the employer's liability to pay compensation for that unfair dismissal - although there are some special features of that case involving the manner by which the employer had assigned the severance payment which may have contributed materially to that result.

103 Nevertheless, the claim of an employee who has had his employment terminated in breach of contract, but who has been paid wages in lieu of notice, will seldom generate an entitlement to damages for breach of contract. This is because, as explained by Brennan CJ, Dawson and Toohey JJ in Byrne & Frew (supra) at 428:

"Even if an employee who is wrongfully dismissed chooses to keep the contract of employment on foot, he or she cannot claim remuneration in respect of any period after the wrongful dismissal because the right to receive remuneration for services is dependent upon the services having been rendered. The employee is also under a duty to mitigate any damage. Moreover, a court will not, save in exceptional circumstances, order specific performance of the contract of personal service. The possible continuation of the contract of employment after a wrongful dismissal will, therefore, ordinarily be of no real significance as it will for all practical purposes be at an end."

The position is fully apparent from the judgment of Anderson J in this Court in Dellys v Elderslie Finance Corporation Ltd (supra) at [39] where his Honour said:

"In the absence of express terms in the contract of employment providing for special payments on termination and where summary dismissal is not justified, the single obligation on the employer in terminating the contract is to give reasonable notice that if he fails to do so, there will be a wrongful dismissal entitling the employee to the single remedy of damages. The general rule with respect to the quantification of damages for wrongful dismissal is that the starting-point is the gross amount which would have been earned during the period of reasonable notice had the contract continued. From this must be deducted the gross amount actually received by the employee during that period: Kilburn v Enzed Precision Products (Australia) Pty Ltd (1988) 4 VIR 31 at 33 - 34. The amounts to be deducted include all payments made to the employee by the employer (including payments for leave which is due to the employee) as well as all remuneration earned by the employee in other employment: Quinn v Jack Chia (Australia) Ltd [1992] 1 VR

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567 at 581. Of course, the employee will be entitled to have the benefit of any accrued rights such as wages actually earned, but not paid."

104 In determining the significance which should be given to a dismissal which involves a minor breach of the contract of employment, in a situation where there is relief claimed for harsh, oppressive or unfair dismissal, the court or tribunal should concentrate on the overall effect of the dismissal in its context rather than treating the issue as being concluded by the establishment of any breach by the employer of the terms of the contract of employment however inconsequential. In Byrne & Frew v Australian Airlines Ltd (supra) McHugh and Gummow JJ, at 466, cited with approval the observations of Bray CJ in R v Industrial Court of South Australia; Ex parte General Motors-Holdens Pty Ltd (1975) 10 SAIR 582 where the learned Chief Justice said:

"A lawful dismissal, in appropriate circumstances, can, I think, be legitimately categorised as harsh and unreasonable, and probably it could even be called unjust. Conversely, some wrongful dismissals, as when by excusable mistake a notice is given slightly short of the necessary week, might deserve none of these adjectives. The criterion is not lawful or wrongful dismissal, but harsh unjust or unreasonable dismissal."

105 Consequently, I consider that this appeal should be upheld. I propose that this Court should make the following orders:

1. This appeal be allowed.

2. The decision of the Full Bench of the Industrial Relations Commission of 6 February 2001 dismissing the appellant's appeal from the decision of Commissioner Wood of 9 May 2001 be set aside.

3. In lieu thereof it be ordered that the appeal to the Full Bench from the decision of Commissioner Wood of 9 May 2001 be allowed.

4. That the appellant's claim for relief under s 29(1)(b) be remitted to Commissioner Wood for further hearing and determination in conformity with the decision of this Court.