Joy Patricia Bowman and Barker Gosling Group Pty Limited

[1995] IRCA 698

In the Industrial Relations
Court of Australia
New South Wales District Registry  Matter No: NI 95/2587

Between:  Joy Patricia Bowman
  Applicant

And:  Barker Gosling Group Pty Limited
  Respondent

Coram:             Tomlinson JR
Place:               Sydney
Date:                 24 November 1995

Reasons for decision delivered Ex-Tempore revised from Transcript

This is an application by Joy Patricia Bowman under the Industrial Relations Act, seeking reinstatement and compensation for the termination of her contract of employment. In support of her application, the applicant filed an affidavit which was admitted into evidence as exhibit 1. That affidavit revealed that the applicant commenced work on 16 August 1993 with the Barker Gosling Group Proprietary Limited, a group that provided legal services to Barker Gosling Legal Group, a national association of independent legal practices.

Initially, the applicant stated she was appointed the position of National Administrator wherein she reported to a Group Management Committee.  Marked exhibit A to her affidavit was her letter of appointment dated 29 September 1993 indicating initially that the period of employment was to be for 12 months.  However, evidence given to the court indicated that the employment went much further than that.  There was evidence before the court that at no time was the employment of the applicant unsatisfactory, nor was there any need to caution or warn her about any conduct or poor performance.

The applicant indicated the extent of her duties and went on to state that in about May of 1994, she attended a board meeting of the respondent, as a result of which her salary package was substantially increased.  It was not in dispute between the parties, that at the time of termination the salary of the applicant was $45,000.  The applicant stated that in or about May of 1994, the board of the respondent decided to appoint a Managing Director, a Mr Alan Kirsner.  Mr Kirsner commenced duties as Managing Director of the respondent, Barker Gosling Group Proprietary Limited on 31 October 1994.

The applicant stated, in paragraph 15, in or about February 1995 she requested annual leave for eight weeks commencing 19 December.  To that end she paid a non-refundable deposit of some $200, a fact of which was acknowledged by Mr Kirsner on behalf of the respondent during the course of his giving evidence to this inquiry.  The applicant stated that on Friday, 16 June 1995 at about 3 o'clock, the Managing Director, Mr Kirsner and Mr Laurie Diercke entered her office and a short conversation took place, wherein the applicant was terminated.

It appears that the reason given for the termination was that she was redundant.  At that meeting on the Friday, 16 June, the applicant returned her keys and facilitated her departure from the office and, it is my understanding, has not worked for the respondent since then.  There was some evidence given to the court about a very small amount of money received by the applicant by way of remuneration at attempts to gain employment.  There was evidence given to the court that the applicant has, indeed, been active and vigorous in seeking employment elsewhere, but has yet been unable to do so.

It is noted that the applicant has substantial experience in the field of management, office managerships, word processing and general secretarial skills, but being some 57 years of age, I have to say that future employment prospects are somewhat slim.

On behalf of the respondent the court heard evidence from Alan Kirsner, who confirmed he was the Managing Director of the respondent.  It was the evidence of Mr Kirsner that, in fact, the decision to terminate the applicant occurred on 19 May 1995 and that, in fact, that decision was not put into effect until 16 June 1995.

Substantially, the evidence of the applicant and Mr Kirsner was the same.  It was confirmed the salary was some $45,000.  In his evidence to the court, Mr Kirsner confirmed that no consultation or guidance or inclusion in discussions with regard to the future employment of the applicant at any time or any shape or any form took place between the respondent and the applicant.  It was submitted on behalf of the applicant, that even if this was a genuine redundancy it was, in fact, unlawful and procedural fairness was denied.

Mr Goot stated that there was work that was able to be performed by the applicant as the position of the applicant seems to, from the evidence before the court, have been absorbed by Mr Kirsner and his secretarial assistant in Melbourne.

There was no concrete evidence, apart from the sworn testimony of Mr Kirsner as to the exact extent of the fate of the duties performed specifically by the applicant.  I agree with the contention of Mr Goot that the respondent did have regard for the applicant’s future employment position in the five firms under the direction of the respondent, in that Mr Kirsner stated in his affidavit that he did, in fact, make contact with the five firms within 24 hours of terminating the applicant as to future employment prospects.  Apart from that small effort, nothing substantial seems to have been done to assist the applicant to relocate into a new position.

I agree with the contention of Mr Goot, that effectively the applicant was locked out of the decision making process, whereby she lost her job.  The applicant held an important and highly sensitive position with the respondent and I am of the view that to discuss the perceived future employment prospects of the respondent with its employee, the applicant, was in my view the very least the respondent should have done as a bare minimum requirement.  The respondent looks after a leading national firm of solicitors and in my view there was a lot that could have been done to assist her.

However, from all the evidence before the court with regard to the financial information presented and the decision made by the various partners representing the national organisation, it is a finding of this court that vis a vis the respondent there was a genuine redundancy.  I agree with the submissions of Mr Neil with his reliance in that regard on the judgment of Ryan J in Jones v The Department of Energy and Minerals.  However, it is clearly established that the requirements of procedural fairness do relate to terminations arising out of redundancies and in that regard, I rely on the case of White v Douglas Diagnostic.

In the case before the court today there was no guidance, counselling at all and it is a finding that the termination of Ms Bowman contravened the provisions of the Industrial Relations Act and I find that such termination was harsh and unjust and unreasonable. The applicant seeks reinstatement and as such compensation can only be granted if such relief is impracticable. There has been no evidence from either party as to the exact practicability of reappointment to a similar full-time or part-time position within the respondent other than verbal evidence. In such technical and high skilled area as a legal firm, I am reluctant to reappoint the applicant to something of equal standard.

I do not feel that that is my province to do that on the paucity of evidence relating to that position before the court.  I would have regard in that particular area of the volatility of employment in legal arena.  As this is a case, however, where reinstatement is impractical, I am of the view that compensation is payable.  To that end I rely on the judgment of Mr Gray J in Lidell v Lembke where he states:

“Where this court finds that a contravention of provision of the Act has occurred in relation to termination, it will ordinarily grant reinstatement.  If reinstatement is impracticable, then compensation.  In such a case the court will not have an unfettered discretion to refuse compensation, nor will it be able to adjust the measure of compensation according to its opinion of the conduct of the employee.  It is required to order the employer to compensation the employee as far as possible up to the limit specified in respect of any loss which the employee has suffered by reason of the termination.

From the evidence presented to this court today I can see nothing to prevent my awarding the maximum amount of compensation.  I have regard to Mr Neil's submission, the TCR case, and it is my view that this legislation overtook the requirements of that case.

Accordingly, I order the respondent to pay to the applicant the sum of $22,250 within 28 days of today's date such compensation being awarded under Section EE(2).

I further order the respondent to pay to the applicant an additional sum of $200 within 28 days being compensation under section 376, the amount of the deposit lost for the holiday.

Minutes of Order

The Court orders that:

1. That the respondent pay to the applicant the sum of $22,250.00 within 28 days of to-day’s date.

1. The respondent pay to the applicant the additional sum of $200.00 within 28 days of to-day’s date

NOTE:Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules

I certify that this and the preceeding four (4) pages are a true copy of the Reasons for Decision delivered Ex-Tempore of Judicial Registrar Tomlinson.

Associate

Date:              22 January 1996

Appearances

Counsel for the Applicant:     Mr R.M. Goot

Instructed by:  Mr E.Haggerty of Toomey Pegg & Drevikovsky

Counsel for the Respondent:  Mr I.Neil

Instructed by:  Respondent Direct.