Manuel v Pasminco Cockle Creek Smelter Pty Ltd (formerly Pasminco Metals Sulphide Pty Ltd)

[1998] FCA 861

FEDERAL COURT OF AUSTRALIA

INDUSTRIAL RELATIONS - TERMINATION OF EMPLOYMENT - Application for review of decision of Judicial Registrar upholding claims of unlawful termination - redundancy based on change in operational requirements - criteria applicable for selection from pool of employees eligible for redundancy - employees not given an opportunity to answer allegations relating to conduct or performance - whether reinstatement impracticable - compensation

INDUSTRIAL RELATIONS - TERMINATION OF EMPLOYMENT - review - fixed term employment contract - expiration of term - whether termination at initiative of employer - whether employee excluded from Division 3 of Part VIA of the Act - associated jurisdiction - whether employee entitled to contractual payment at the end of the fixed term.

Industrial Relations Act 1988 (amended by Industrial Relations Reform Act 1993) (Cth) Pt VIA, ss170DC, 170DE, 170EE, 170DF

Kenefick v Australian Submarine Corporation Pty Ltd (No. 2) (1996) 65 IR 366 applied
The State of Victoria v The Commonwealth (1996) 187 CLR 416 followed
Griffin v The Australian Postal Corporation (unreported, Full Court of the Federal Court, 1 June 1998) applied
Fisher v Edith Cowan University (1997) 72 IR 464 applied
Adis International Pty Ltd v Allen (1997) 74 IR 262 applied
Cosco Holdings Pty Ltd v Do (1977) 150 ALR 127 applied
Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 applied
Anthony’s Smith & Associates Pty Ltd v Sinclair (1996) 67 IR 240 distinguished
Kenefick v Australian Submarine Corporation, (unreported, Full Court of the Industrial Relations Court of Australia, 8 July 1997) applied

VON DOUSSA J
SYDNEY (HEARD IN ADELAIDE)
7 JULY 1998

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SG11  of   1998

BETWEEN:

DENNIS RICHARD MANUEL
RODNEY CHARLES CARROLL
WAYNE MALCOLM CALDWELL
NEVILLE DAVID DENNIS
GEORGE JOHNSON
RONALD SIMMONS
PAUL DOUGLAS CARROLL
RONALD JAMES PARKER
MARK GREGORY NAPIER
PETER JON McDONALD
KOSGMAS DIAMANTES

APPLICANTS

AND:

PASMINCO COCKLE CREEK SMELTER PTY LTD (Formerly PASMINCO METALS SULPHIDE PTY LTD)

RESPONDENT

JUDGE:

VON DOUSSA J

DATE OF ORDER:

7 JULY 1998

WHERE MADE:

SYDNEYT (HEARD IN ADELAIDE)

THE COURT ORDERS THAT:

On the notice of motion in action SG11 of 1998:

(a)dismiss the notice of motion in relation to Neville David Dennis and confirm judgment in favour of Neville David Dennis for $23,166.

(b)set aside the awards made by the Judicial Registrar in favour of the remaining applicants and in lieu thereof award compensation as follows:

$
Rodney Charles Carroll	21,216
Paul Douglas Carroll	30,862
Kosgmas Diamantes	23,000
Peter John McDonald	30,862
Dennis Richard Manuel	26,000
Mark Gregory Napier	32,000
Ronald James Parker	21,216
Ronald John Simmons	13,625

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SG16  of   1998

BETWEEN:

PAUL THOMAS BORLACE

APPLICANT

AND:

PASMINCO COCKLE CREEK SMELTER PTY LTD

RESPONDENT

JUDGE:

VON DOUSSA J

DATE OF ORDER:

7 JULY 1998

WHERE MADE:

SYDNEY (HEARD IN ADELAIDE)

THE COURT ORDERS THAT:

On the notice of motion by Paul Thomas Borlace in action SG16 of 1998, set aside the decision of the Judicial Registrar and enter judgment in favour of Paul Thomas Borlace for $17,550.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SG17  of   1998

BETWEEN:

NEVILLE DAVID DENNIS

APPLICANT

AND:

PASMINCO COCKLE CREEK SMELTER PTY LTD

RESPONDENT

JUDGE:

VON DOUSSA J

DATE OF ORDER:

7 JULY 1998

WHERE MADE:

SYDNEY (HEARD IN ADELAIDE)

THE COURT ORDERS THAT:

The notice of motion by Neville David Dennis in action SG17 of 1998 is dismissed.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SG11 of 1998

BETWEEN:

DENNIS RICHARD MANUEL
RODNEY CHARLES CARROLL
WAYNE MALCOLM CALDWELL
NEVILLE DAVID DENNIS
GEORGE JOHNSON
RONALD SIMMONS
PAUL DOUGLAS CARROLL
RONALD JAMES PARKER
MARK GREGORY NAPIER
PETER JON McDONALD
KOSGMAS DIAMANTES

APPLICANTS

AND:

PASMINCO COCKLE CREEK SMELTER PTY LTD (Formerly PASMINCO METALS SULPHIDE PTY LTD)

RESPONDENT

  SG16 OF 1998

BETWEEN:

PAUL THOMAS BORLACE

APPLICANT

AND:

PASMINCO COCKLE CREEK SMELTER PTY LTD

RESPONDENT

  SG17 OF 1998

BETWEEN:

NEVILLE DAVID DENNIS

APPLICANT

AND:

PASMINCO COCKLE CREEK SMELTER PTY LTD

RESPONDENT

JUDGE:	VON DOUSSA J
DATE:	7 JULY 1998
PLACE:	SYDNEY (HEARD IN ADELAIDE)

REASONS FOR JUDGMENT

This judgment concerns three notices of motion which seek review under s377 of the Workplace Relations Act 1996 (Cth) (“the Act”) (as in force prior to the commencement of Schedule 6 of the Workplace Relations and other Legislation Act 1996 (Cth) of the decision and orders of a Judicial Registrar made on 14 January 1998. The Judicial Registrar’s decision followed a 17 day trial on 12 applications brought under s170EA of the Act by former employees of Pasminco Cockle Creek Smelter Pty Ltd (“Pasminco”) for relief in respect of the termination of their employment. A review pursuant to s377 is by way of rehearing de novo. For this reason the original applicants are still referred to as applicants in the notice of motion brought by Pasminco, and it is convenient in this judgment to continue to refer to them as applicants.

The first notice of motion, action SG11 of 1998, is brought by Pasminco seeking to review adverse decisions made by the Judicial Registrar in favour of 11 of the 12 applicants.  Action SG16 of 1998 is brought by the other applicant, Paul Thomas Borlace, whose claim was dismissed by the Judicial Registrar.  Action SG17 of 1998 is brought by Neville David Dennis.  Mr Dennis is named as one of the applicants in the notice of motion brought by Pasminco in action SG11 of 1998.  Before the Judicial Registrar Mr Dennis succeeded in obtaining an award of compensation by way of remedy under s170EE(2).  Mr Dennis seeks to have the decision reviewed, and in lieu of compensation he seeks an order for reinstatement.  The entitlement of Mr Wayne Malcolm Caldwell as an applicant in SG 11 of 1998 and a further notice of motion in action SG18 of 1998 brought by George Johnson have been resolved between the parties after the hearing of argument and no further reference need be made to those matters. 

All applicants had been employed by Pasminco in its mining operation at Broken Hill.  On 19 July 1996 the applicants (other than Mr Borlace) received notices advising them that due to a reorganisation of both underground and surface operations they were included in a Selective Redundancy Program which would become effective on 9 August 1996.  The Judicial Registrar held that their employment was effectively terminated by the letter on 19 July 1996, and the applicants left their employment at that time.

The history of mining at Broken Hill was conveniently summarised by the Judicial Registrar, and that summary has not been criticised by the parties.  I adopt it:

“Mining has been undertaken in Broken Hill since 1885 by various companies with leaseholds on the Broken Hill ore body.  The mining operations in Broken Hill are now concentrated at the southern end of the ore body.  The Potosi mine is on a separate ore body and involves a small open cut operation.

At its peak in 1952, mining at Broken Hill provided employment for 6,477 people.  However, since that time the number of employees had declined so that today there is only the Pasminco Ltd group still involved in mining operations, which presently employs approximately 680 employees.  The decline in employee numbers can be attributed partly to improvements in technology and a move away from more manually intensive forms of mining.  However, the main cause of the decline has been the declining metal content of the ore body.

The decline in the number of employees employed in mining operations at Broken Hill was shown in the statistical data that is in the first part of exhibit R11 ‘Downsizing Strategies and the Socioeconomic Impact on Broken Hill’.  Also shown there are details of retrenchments that have occurred from 1986 to 1995.  The latter data shows that between 1986 and 1995, in the southern operations, approximately 1,385 employees have been retrenched involuntarily and a further 156 voluntarily.  These figures do not include retrenchments at the North Mine which, during 1993, numbered approximately 450.

The length of the life of the mine and the rate of decline in employee numbers are uncertain but depend on the combination of factors that affect the viability of those operations.”

In April 1996 Pasminco undertook a review of its Broken Hill mining operations. The review concluded that if mining operations were to continue at Broken Hill beyond 2000, major reorganisation of underground and surface operations was necessary. The restructure and reorganisation which implemented the recommendations of this review led to the retrenchment of some 94 employees from a total workforce of approximately 770 people. The number to be retrenched was achieved by first accepting 48 voluntary redundancies, and then selecting 46 people for involuntary retrenchment. The applicants, other than Mr Borlace, were among those selected for involuntary retrenchment. Mr Borlace in his proceedings under s170EA contended that he was an employee whose employment was terminated at the initiative of the employer in July 1996. This allegation was denied by Pasminco, who alleged that Mr Borlace was a contract employee whose contract expired.

The applicants made the following claims:

1. that the termination of the employment of each of the applicants contravened the following provisions of Division 3 of Part VIA of the Act:

• s170DC - it was alleged that each employee was not afforded an opportunity to defend himself against allegations relating to his conduct or performance.

• s170DE(1) - it was alleged that the employer terminated the employment of each applicant when there did not exist a “valid reason” for the termination.

• s170DF(1) - it was alleged that the employer determined each applicants’ employment for reasons that included one or more of the prohibited grounds in that subsection, namely union membership, age or physical disability.

• s170DB - it was alleged that those applicants who received wages received only three weeks pay in lieu of notice (from 19 July 1996 to 9 August 1996), and the difference between three weeks and the applicable minimum under s170DB was claimed.

1. Pursuant to the associated jurisdiction arising under s430 of the Act the following common law claims were alleged:

• All applicants other than Messrs Borlace and Manuel, claimed that there was a wrongful termination at common law by the employer in that the contracts of employment were terminated without the employer giving a period of reasonable notice or payment in lieu thereof.

• All applicants claimed that the employer took into account matters not raised with the employees in making a decision to terminate their employment and subsequently the employer breached an implied term of their employment contracts, namely that the employer would in its dealings with the employee act fairly and in good faith.

• It was also claimed that in so doing the employer breached an implied term of the contract of employment that the employer would not damage or destroy the relationship of trust and confidence between the parties without reasonable cause.

• Messrs R Carroll, Dennis, Napier and Simmons were, in July 1996, suffering disabilities as the result of work injuries.  Each of these applicants claimed that the employer breached an implied term of the contract of employment, that the employer would not engage in conduct likely to destroy or seriously damage the relationship of trust and confidence between the parties, in that there was a failure of the employer to fulfil its rehabilitation obligations.

• Mr Borlace has also made a claim for a redundancy payment which he alleged was due to him as an employee.

Pasminco disputed each of these claims and in the alternative contended that it would be impracticable to order reinstatement as a remedy.

The Judicial Registrar commenced her reasons for decision with a review of the history of mining operations, and an explanation of industrial regulation at Broken Hill. The Judicial Registrar noted that the industrial regulation of employment conditions in Broken Hill mines was by way of industrial agreements between the mining companies and the Barrier Industrial Council (“BIC”), the peak trade union body at Broken Hill and its affiliate unions, in particular in the 1993 Mines Agreement The manner of industrial regulation was described as unusual in Australia, if not unique. The Judicial Registrar found that there were instruments in force, governing both Pasminco and the applicants, which made specific arrangements for redundancy and the payment of consequential benefits. The Judicial Registrar held that these agreements prevented the applicants from pursuing the common law claims which they alleged. However, it was held that the agreements which bound the applicants did not take away their statutory rights under the Act in respect of notice or payment in lieu thereof under s170DB.

The Judicial Registrar reviewed the evidence of each of the applicants, and in the course of doing so held that Mr Borlace had been employed under a series of fixed term contracts the first of which commenced on 13 July 1993 and the last of which expired on 12 July 1996. The Judicial Registrar held that Mr Borlace had been engaged under a contract for a specified period of time. It was held that in the circumstances he was excluded from the operation of the relevant provisions of Part VIA of the Act. His claim for unlawful termination was therefore dismissed. His claim for redundancy benefits was also dismissed.

The Judicial Registrar then reviewed the evidence of the respondent’s witnesses.  It seems to have been accepted that the reasons for the restructure and reorganisation which occurred in 1996 were well founded.  However, the Judicial Registrar held that the selection process took into account criteria that included individual skills possessed, skills applied on a day to day basis, overall performance of duties, and ability to work flexibly in line with the changes required under the new structure.  The selection process was completed, and the final decisions made before the applicants were informed that their continuing employment was under consideration.

The Judicial Registrar was not satisfied that the respondent had discharged an onus of proving “the validity of the selection process”.  This finding followed criticism made by the Judicial Registrar of the destruction of documents by the respondent that related to the application of the selection criteria and to its failure to call a number of people who had been involved in it.  The finding appears to reflect a lack of satisfaction by the Judicial Registrar that the nominated criteria had been fairly and impartially applied to all those potentially subject to retrenchment.  On that footing, the Judicial Registrar was not satisfied that the applicants’ employment was terminated for a valid reason “based on the operational requirements of the undertaking”, that being the second of the grounds referred to in s170DE(1).

On the claims under s170DC, the Judicial Registrar held that in the case of each applicant (other than Mr Borlace) his employment had been terminated for reasons related to his “conduct or performance” and that he had not been given an opportunity to respond to allegations against him.  The Judicial Registrar said:

“The respondent argued that it could not reasonably be expected to give each employee the opportunity to respond prior to notifying them of their dismissal.  Mr Edwards [the Group Manager for Employee Relations for Pasminco] gave evidence of his concern about the impact on the remaining employees and in the Broken Hill community if employees were given the opportunity to respond.

The legislation here is not concerned with the effect on the remaining employees or the community.  Though I do believe the respondent underestimated the value of a fair and open process in easing the minds of the remaining employees who may think that their job could be next”.

The Judicial Registrar further held that one of the reasons for the termination of the employment of Mr Dennis was because of his participation in union activities.  It was held that because of his membership of the union he had been denied, some time earlier, the opportunity to work at the Potosi open cut mine where only employees employed under single status contracts were permitted to work.  When Pasminco applied the selection criteria Mr Dennis was placed in a disadvantaged position compared to the pool of employees from which he was selected, because he did not have skills (driving a dump truck) which he would have possessed had he been permitted to work at Potosi.  In relation to all the other applicants the Judicial Registrar was not satisfied that a breach of s170DF had been established.

The claims based on a failure to rehabilitate Messrs R Carroll, Manuel, Napier and Simmons were dismissed.  The Judicial Registrar observed that the breach or otherwise of rehabilitation obligations turned on an analysis of events which occurred after the termination of the employment relationship and were probably matters for the relevant statutory authority concerned with administering the workers compensation regime in New South Wales.

In summary, the Judicial Registrar held that there had been contraventions of s170DE(1) and s170DC in respect of all applicants other than Mr Borlace, and a further contravention of s170DF(1)(b) in the case of Mr Dennis.

The Judicial Registrar made reinstatement orders in respect of Messrs R Carroll, P Carroll, Napier and Manuel.  Each of these applicants had given evidence of their desire to be reinstated.  Each of them suffered physical disabilities and would be likely to find it more than usually difficult to obtain other employment.  It should be noted that the disabilities were in each instance the subject of workers compensation claims.

The other applicants, either because they had not sought reinstatement, or were ambivalent on that topic, were awarded compensation payments in lieu of reinstatement. The Judicial Registrar thought it unlikely, because of the bleak future for the mines in Broken Hill, that any of the applicants would be working for more than four years even if they had not been retrenched. That period was taken as a starting point for the calculation of compensation, and then discounted for the contingency that, but for the contraventions of the Act, the employment may nevertheless have been terminated earlier. The compensation awarded was as follows:

Applicant	s170EE(3) cap $	Lost Earnings  * over 4 years	Discount	Award
Mr Dennis	23,166	136,000	60%	23,166
Mr Diamantes	31,969	240,000	90%	24,000
Mr McDonald	30,092	240,000	70%	30,092
Mr Parker	20,424	160,000	70%	20,424
Mr Simmons	21,040	168,000	90%	16,800 plus 500 for distress

*Lost earnings are assessed after allowance for income from other employment.

Each of the applicants in whose favour reinstatement was ordered had received substantial payments upon their retrenchment constituted by Pension Fund payments, including payments under Part D of the Broken Hill Mine Employees’ Pension Fund Trust Deed and associated documents (“the Pension Fund”).  The Pension Fund provided specifically for additional benefits on redundancy, a further 13 week payment in lieu of notice because of redundancy, long service leave and annual leave.  The Judicial Registrar noted that difficulties might arise in respect of the repayment of these amounts and invited further submissions.  It became apparent in the course of submissions on a subsequent application to stay the Judicial Registrar’s orders pending the outcome of this review, and on the review itself, that there could be insoluble problems relating to taxation and the repayment of the pension entitlements in the case of the reinstated employees.  However, in light of the conclusions which I have reached upon the review applications, it is not necessary to explore the nature and extent of these difficulties, nor seek to resolve them.

The review hearing.
When Pasminco’s notice of motion was first listed for directions, both parties announced that they wished to have all the evidence recalled and to explore afresh every issue that had been pursued before the Judicial Registrar.  The trial over 17 days had taken place at Broken Hill under difficult circumstances, with the Judicial Registrar sitting extended hours and over weekends.  Many exhibits had been tendered.  To discard all of the material that had been elicited before the Judicial Registrar seemed, with respect to the parties, quite unrealistic.  After hearing counsel, directions were given that the evidence and exhibits received before the Judicial Registrar would be evidence in the review proceedings, and liberty was given to all parties to file and serve additional affidavits together with written outlines of their submissions.

Supplementary affidavits were filed by each of the applicants, and from Mr Butcher, the President of the Broken Hill Branch of the CFMEU, who had given oral evidence at length at the original trial.  New evidence was filed from Mr R L Murphy in connection with Mr Napier’s claim.  On the respondent’s behalf a supplementary affidavit from Mr Edwards was filed, along with new evidence in affidavits from Messrs Mark Hine, Ian Smith, Noel Hannigan, Bruce Byrne, Owen Davies and Anthony Brown.

On the hearing of the reviews, Pasminco presented its case first.  The respondent’s additional affidavits were tendered and the deponents, apart from Mr Davies, were cross-examined.  In the applicants’ case the additional affidavits were filed and Messrs Caldwell, P Carroll, Napier and Manuel were cross-examined.

The additional evidence, though extensive, does not raise substantial new issues.  Rather it recanvasses, in places in a little more detail, issues which had been explored before the Judicial Registrar.

Issues on review
Counsel for the parties in written submissions both before the Judicial Registrar and on the review, in the evidence, and in oral submissions, explored in enormous detail every possible permutation of law and fact, many of which were far removed from the central issues in the case.  I do not think it is necessary or would be helpful to explore all of them, and I do not propose to do so.  I think it is helpful  to start with the written outlines of submissions which the parties filed by direction before the commencement of the review.

Pasminco’s outline of submissions raise the following issues:

• The operative reason for the termination of the employment of each of the applicants (other than that of Mr Borlace) was Pasminco’s need to reduce the size of its workforce.  The termination of their employment was therefore “based on” Pasminco’s “operational requirements”, and was for a “valid reason” within the meaning of the second limb of s170DE(1).

• Alternatively, the termination was also for a valid reason “connected with” the applicants’ “capacity” so as to come within the first limb of s170DE(1).  Pasminco contends that there is a distinction between “capacity” which may constitute a valid reason for termination of employment and in respect of which no obligation arises under s170DC, and an employee’s “conduct or performance”.  It is contended that the conduct or performance contemplated by s170DC is of the kind which is reasonably capable of giving rise to allegations which can be made against the employee so that the employee has the opportunity of offering a defence against the allegations.  The submissions address factual issues said to support these submissions, and in particular that “conduct or performance” of each employee was not an operative reason for the termination of their employment.

• Alternatively if the conduct or performance of an employee was a reason for termination, Pasminco contends that s170DC(b) applies so as to excuse Pasminco from giving the employee the opportunity to offer a defence to the allegations made.  This submission is based in part on the assertion that a document which has the full title “Minimising the Impact of Redundancy and Retrenchment.  The Proposed Strategy between Pasminco Mining Broken Hill and the Barrier Industrial Council” binds the parties.  This document, prepared in late 1992, sets out an agreed retrenchment strategy.  The final version of the document, upon which Pasminco acted, was dated December 1992.  The strategy is referred to by the Judicial Registrar in the reasons for decision as “the agreed retrenchment strategy” and I adopt the same description.  Pasminco contends that the terms of the agreed retrenchment strategy mean that Pasminco was not required to make allegations against individual employees before they were told that they had been selected for redundancy, provided that Pasminco was willing to review the selection thereafter - which, as a matter of fact, it says it was.

• Even if Pasminco were in contravention of Div 3 of Part VIA of the Act, in all the circumstances no remedy should be granted. Reinstatement is impracticable because of the reasons which led to the reduction in the size of the respondent’s workforce and because no positions remain available for the applicants. On the facts, even if there had been no contravention, the applicants would still have been retrenched and it is not appropriate to grant compensation. Detailed submissions are then made as to the position of each of the applicants to support this submission.

• On the claims in the associated jurisdiction Pasminco contends that the terms of the 1993 Mines Agreement bind the parties.  The applicants (other than Mr Manuel and Mr Borlace) took advantage of the agreement under which they became entitled to benefits under Part D of the Pension Fund and associated agreements - the effect of which was that the applicants received three months’ pay in lieu of notice.  Alternatively, the applicants each received, in effect, three months and three weeks pay in lieu of notice.  Even if they were entitled to reasonable notice under their contracts of employment, this was a reasonable period.  Furthermore, the benefits payable under Part D of the Pension Fund were intended to be exhaustive, and would not be available to employees if any other payment were required in respect of retrenchment.

• The termination of the employment of Mr Borlace was not at the initiative of the employer, and he was engaged under a contract of employment for an agreed specified period of time: Regulation 30B(1) of the Industrial Relations Regulations.

The applicants’ outline of submissions raise the following issues:

• The terminations occurred in contravention of s170DC.  The submissions advance detailed reasons in support of the proposition that each applicant was selected by reference to conduct or performance criteria and this became an operative reason for the termination.

• The terminations were in contravention of s170DE(1) as no valid reason or reasons existed.  First, the onus to establish a valid reason lies on the employer: s170EDA(1)(a). Because of deficiencies in Pasminco’s retention of records and evidence, and because there was evidence that the selection process, in some instances, was conducted by members of management who “had it in for” the particular employee, the onus was not discharged.  Secondly, there was no valid reason within the first limb of s170DE(1) for a number of reasons, including want of procedural fairness in contravention of s170DC, reliance on a prohibited reason under s170DF.  It was also claimed that the restructuring did not require the termination of the applicants’ employment, and there was a failure to follow the provisions of industrial agreements on matters such as seniority and prior consultation.

• Pasminco has not proved that the employment was not terminated for a reason prohibited by s170DF(1) or for reasons that included a prohibited reason, the onus being upon Pasminco: s170EDA(2).  Submissions identified evidence said to support termination for union membership in the case of Messrs Dennis, Manuel and Parker, for age in the case of Messrs Diamantes, Parker, and Simmons and for physical disability in the case of Messrs Caldwell, R Carroll, Manuel, McDonald, Napier and Simmons.

• Reinstatement should be awarded.  Pasminco’s evidence that it has no need for additional employees and that there is no useful work for any of the applicants is challenged.  It is submitted that although a number of the applicants are in ill health or have physical disabilities, a commitment to rehabilitation would require their reinstatement.

• If reinstatement is not awarded, each of the applicants should receive the statutory cap of $32,000 by way of compensation.

• Other than for Messrs Manuel and Borlace the employer paid only three weeks pay in lieu of notice which is less than the s170DB(2) minimum.

• On the footing that the applicants (other than Messrs Manuel and Borlace) received only three weeks pay in lieu of notice, a common law claim is pressed for a reasonable period of notice. Supplementary submissions in respect of this claim acknowledge that the question turns on whether the parties were bound by the agreed retrenchment strategy.

• In respect of the claim by Mr Borlace, it is contended that his employment was terminated at the initiative of the employer, and that no valid reason has been established by Pasminco under s170DE(1). Further, it is submitted that Pasminco altered the position of Mr Borlace as an employee contrary to s334 of the Act because he was a member of a union. It is submitted that the evidence shows that Mr Borlace was denied permanent employment because he would not sign a single status contract, and that single status contracts were only available to non-union members. Additionally, the employer had engaged in conduct which estopped it from relying on the terms of the contract with Mr Borlace, and that the main purpose was in any event to avoid the employer’s obligations under the Act. Finally, it is submitted that under the combined effect of a number of the industrial agreements Mr Borlace was entitled to receive a minimum payment in lieu of notice of his pending redundancy of three months pay as he had satisfied a precondition of “one year’s continuous service of not less than the unclassified labourers’ rate”.

Discussion
The claim by Mr Borlace raises discrete issues, and it is appropriate to deal with it separately.  Unless Mr Borlace is to be treated as a permanent employee entitled to the benefit of ss170DE, 170DE(1) and 170DF, his claim does not raise issues in common with the claims of the other applicants.

In respect of the claims of the other applicants, much of the plethora of allegations and contentions advanced on their behalf will become of academic interest only if the central allegation that there was a contravention of s170DC is made good.  In that event, the remedy provisions in s170EE are enlivened, and the applicants are entitled to the benefit of those provisions even if Pasminco establishes that the terminations were otherwise for a valid reason within the meaning of either limb of s170DE(1).  A contravention of s170DC entitles dismissed employees to remedies even where the dismissals were for reasons based on the operational requirements of the undertaking: Kenefick v Australian Submarine Corporation Pty Ltd (No. 2) (1996) 65 IR 366. I propose there to consider Mr Borlace’s claim first, then to consider whether a contravention of s170DC has been established in respect of the other applicants.

Paul Thomas Borlace
Mr Borlace is aged 35 years.  He had worked at the North Mine but was made redundant when the mine closed on 19 February 1993.  He had been unemployed for some months when he was approached by an official from Pasminco who offered him a job on contract.  He entered into a fixed term contract of employment as a Mine Worker - Grade 3 for the period from 13 July 1993 to 15 October 1993.  The terms and conditions of the contract, and an endorsement thereon, make it clear that the contract was not for permanent employment, and that the employment would end automatically at the conclusion of the specified period indicated in the contract.

Documents within exhibit R10 indicate that employment under fixed term contracts was a recognised mode of engagement in 1977, and it is provided for under clause 2.3 of the 1993 Mines Agreement, which reads:

“Employees may be employed on daily hire at the applicable graded wage rate plus lead bonus for specific tasks, or projects, or fixed term work assignments not exceeding three years’ duration.  However, employees engaged pursuant to this provision will be entitled to the retrenchment benefit provided by Part ‘D’ of the Broken Hill Mine Employees’ Pension Fund Trust Deed upon completion of the contract of employment after 12 months’ continuous service.”

Periodically, as the fixed term contract under which Mr Borlace was working came to an end, it was extended by Pasminco.  For example, on 11 October 1993 Pasminco, by letter, advised Mr Borlace that the contract was extended for a further period to 10 December 1993 on the same terms and conditions as the earlier contract.  On subsequent occasions when the contract was extended for further periods the written notification of the extension said that it was extended “on the terms and conditions set out in the earlier contract dated 12 July 1993”.

Clause 2.3 of the 1993 Mines Agreement did not permit Mr Borlace to be employed under a fixed term contract beyond 12 July 1996.  That is the day upon which the last notified extension of the contract expired.  On 5 July 1996 Mr Borlace was advised by Pasminco that his contract would not be renewed and that the completion date would be 12 July 1996, the expiry date earlier notified in a letter of 28 May 1996.  Although the letters of extension were not always written before a contract period expired, as I understand the evidence, Mr Borlace worked throughout the three year period from 13 July 1993 to 12 July 1996.

In my opinion the employment of Mr Borlace came to an end because the term of his contract expired.  In this circumstance there was not a termination of his employment at the initiative of the employer: The State of Victoria v The Commonwealth (1996) 187 CLR 416 at 419-520, Griffin v The Australian Postal Corporation (unreported, Full Court of the Federal Court, 1 June 1998), and Fisher v Edith Cowan University (1997) 72 IR 464. For this reason the Court did not have jurisdiction to entertain his claim under Div. 3 Part VIA of the Act and it was rightly dismissed by the Judicial Registrar. In my opinion Regulation 30B of the Industrial Relations Regulations does not have operation in these circumstances, and it is unnecessary to consider its provisions.

The allegation that Pasminco engaged in conduct or representations that estop it from relying upon the terms of the contract as a means by which the employment relationship was terminated is unsubstantiated.  Mr Borlace was well aware that his employment would end on 12 July 1996 unless Pasminco entered into a new agreement with him and the evidence does not suggest that he was led to believe otherwise by Pasminco.

In 1995 Mr Borlace attended a number of meetings conducted by Pasminco officials when employees were offered single status contracts.  The acceptance of a single status contract would elevate an employee to the position of a salaried employee in contrast to the ordinary employees who were on daily hire at the applicable graded wage rate plus lead bonus (see clause 2.3 of the 1993 Mines Agreement).  Mr Borlace decided not to accept a single status contract.  It was his impression that if he were to do so it would require him to cease being a member of his union.  He acknowledges that this was never specifically stated, but it was his impression because one of the terms of a single status contract prevented participation in a strike.  A similar view about the meaning and effect of a single status contract was expressed by other applicants besides Mr Borlace.  This view is inconsistent with the purpose of the single status contract as explained in a letter dated 16 August 1995 to Mr Borlace which invited him to consider becoming a single status contract employee.  In particular the letter informed him that part of the new arrangements included:

• Acknowledgment by the Company and the union that union membership is a matter of individual private choice but is not a requirement of the Company for employment.

• The employee agrees not to participate in any action, either individually or collectively which will interfere with the ongoing operations of the Company or the employee’s performance of his or her duties.

• Any grievance or dispute which arises between the employee and the Company will be handled within the terms of the Fair Treatment Policy.

• Terms and conditions of employment not expressly provided for in the contract will be determined in accordance with the Pasminco Mining - Broken Hill Policy and Procedures Manual.

The terms and conditions of the single status contract which were provided to Mr Borlace included the above acknowledgments.

Evidence from the respondent’s witnesses denied that a single status employee could not be a member of the union.  On the whole of the evidence I find that continued membership of a union was not inconsistent with being a single status contract employee, and the applicants’ beliefs to the contrary are mistaken.

The allegation that Pasminco contravened s334 is based on the suggestion that Mr Borlace was dismissed, or alternatively that he was refused employment, because he was a member of a union. In my opinion the evidence fails to establish that his union membership was a reason or one of the reasons for the company’s decision not to extend his contract. There appears to have been two reasons for that fact, the one noted by the Judicial Registrar, namely that it would be contrary to clause 2.3 of the 1993 Mines Agreement for that to have occurred, and secondly that part of the planned restructure included the non renewal of the engagement of fixed term contract employees.

The conclusion that Div. 3 of Part VIA of the Act does not apply to Mr Borlace does not remove the jurisdiction of this Court to consider the claim made by him in the associated jurisdiction under s430 for a minimum payment of three months’ pay on the termination of his contract. Mr Borlace’s fixed term contract of employment as a Mine Worker - Grade 3 was expressly on the terms and conditions set down in the 1993 Mines Agreement. Clause 2.3 of the Mines Agreement is set out above, and it will be noted that in the second sentence the clause makes provision for retrenchment benefit provided by Part D of the Pension Fund Trust Deed.

The contract of employment entered into by Mr Borlace makes specific provision for membership of the Pension Fund.  Clause 4 provides that an employee engaged by Pasminco on a fixed term contract will be eligible for membership of the Pension Fund, and goes on to provide that “Pension Fund contributions will be deducted from employees and paid in conjunction with employer contributions to (the Pension Fund)” (emphasis added).  Part D of the Pension Fund appears to have been the result of agreement with the BIC in 1977.  The agreement resulted in retrenchment benefits, hitherto provided for in the Mines Industrial Agreement, being provided for in the Pension Fund.  At that time a document was prepared headed “Clauses which are currently included in the Industrial Agreement and which will be included in the document which it will be necessary to read in conjunction with the Pension Fund Trust Deed”.  Mr Borlace seeks to invoke clauses 41.4.1, 41.4.3 and 41.4.4 of that document to support his claim for three months pay.  Those clauses provide for notice of termination of employment to employees who are to be retrenched, and provide that the minimum period of notice will be three months.  If that length of notice is not given a payment in lieu of notice will be made.

The terms of the clauses relied upon, read with the definition clauses in the general conditions, provide a scheme for the payment of benefits and the provision of notice to permanent employees who face retrenchment.  Mr Borlace was not a permanent employee, and on this ground counsel for Pasminco argue that Mr Borlace does not qualify for the payment in lieu of notice.  That submission however appears to be in conflict with the terms of clause 2.3 of the 1993 Mines Agreement. 

The position is clarified by a document which appears as exhibit H to the affidavit of Mr Edwards filed in the original claim of Mr R C Carroll.  Mr Edwards deposed that the exhibit set out the retrenchment policy.  The exhibit includes a section of the Broken Hill Policy Manual entitled “Wages Employees - Retrenchment” issued in 1991.  The document sets out “Clauses to be read in conjunction with the provisions of Part D of the Pension Fund”.  Clauses 2, 4 and 5 of that document repeat clauses 41.4.1, 41.4.3 and 41.4.4 of the 1977 document.

Clause 14 of the clauses which the Policy Manual says are to be read in conjunction with the provisions of Part D reads:

“Notwithstanding the other provisions of Part D of the Pension Fund, employees may be employed on daily hire at the appropriate wage rate plus lead bonuses for specific tasks, or projects, or fixed term work assignments not exceeding three years’ duration.  However, employees engaged pursuant to this clause will be entitled to the retrenchment benefit provided by Part ‘D’ of the Broken Hill Mine Employees Pension Fund Trust Deed upon completion of the contract of employment after 12 months continuous service.”

In my opinion it is clear from this clause 14, and from clause 2.3 of the 1993 Mines Agreement, that the retrenchment benefits provided in Part D are extended to contract employees where their contract comes to an end after 12 months continuous service and their employment is not renewed because they have become redundant.

The evidence shows that Mr Borlace’s contract came to an end, and no steps were made to extend his employment because of the restructuring which also led to the retrenchment of the permanent employees.

For these reasons I conclude that Mr Borlace was entitled to a payment of 13 weeks remuneration in lieu of that period of notice.  I shall deal with the quantification of that entitlement later in these reasons.

Section 170DC
It is helpful to set out the text of the two sections upon which Pasminco’s argument is based:

“170DC         An employer must not terminate an employee’s employment for reasons related to the employee’s conduct or performance unless:

(a)the employee has been given the opportunity to defend himself or herself against the allegations made; or

(b)the employer could not reasonably be expected to give the employee that opportunity.

170DE(1)       An employer must not terminate an employee’s employment unless there is a valid reason, or valid reasons, connected with the employee’s capacity or conduct or based on the operational requirements of the undertaking, establishment or service.”

Pasminco’s argument rests on the difference in the expressions used in s170DC and s170DE(1), namely “conduct or performance” and “capacity or conduct” respectively. It is said that the Act draws a distinction between “conduct or performance” in respect of which an allegation can be made under s170DC, and an employee’s capacity which may found the basis of a valid reason for termination under s170DE(1). Pasminco contends that upon a proper analysis of the evidence, conduct or performance of the kind envisaged by s170DC was not the reason for the termination of the applicants’ employment.

The Macquarie Concise Dictionary, 3rd Edition, relevantly defines “capacity” as “power, ability, or possibility of doing something” and the word “performance” relevantly to mean “execution or doing, as of work, acts, or feats”.  In the context of workplace relations there is at best a very fine line between the ability or possibility of doing something on the one hand and the doing of something on the other.  Rather, the notions would appear to have a large area of common ground. 

It would be meaningful to say that someone duly registered as a medical practitioner had the “capacity” to carry on medical practice.  In that context “capacity” does not refer to “conduct or performance” in the sense in which those words are used in s170DC.  In this example, “capacity” describes a future capability, whereas in s170DC “conduct or performance” refer to something which the employee has done (or possibly failed to do) in the past.  To give a common sense meaning to paragraph (a) of s170DC, that expression must necessarily refer to something in the past about which allegations can be made and a meaningful opportunity to respond given. 

In the context of a workplace situation such as that in question, where, notwithstanding how one describes the process, a comparison is made between a number of employees to select those who best meet prescribed criteria, I do not consider any meaningful distinction can be drawn between “conduct or performance” in s170DC, and “capacity” in s170DE(1).  This is so, as the past conduct or performance of the employees is necessarily considered as an indicator of likely future performance.  My conclusions accord with the views expressed by Wilcox J in Adis International Pty Ltd v Allen (1997) 74 IR 262 at 269.

As the submissions on behalf of Pasminco recognise, Pasminco’s argument must, in the final analysis, turn on the facts even if it is possible to draw a meaningful distinction between “conduct or performance” and “capacity” as Pasminco contends.  I turn therefore to the facts.

The April 1996 review of the Broken Hill mining operations, prompted by a decline in world metal prices and the metal content of the remaining ore body, caused Pasminco management to conclude that substantial restructuring was necessary.  The first step carried out was to reform the management structure.  Major changes occurred.  Part of that restructuring involved the formation of a management team that then considered the future business needs and operational requirements necessary for the mine to remain viable and make a profit into the next century.  A production output and a new organisational structure was forumulated that would include the introduction of seven day operations, a review of the use of contractors, a “more functionalised system of work”, the implementation of annual salaries for all employees, the relocation of the North Mine workshops, the contracting out of non core activities such as gardening, oval maintenance and laundry services, and the introduction of 12 hour shifts for all employees working underground.  The “more functionalised system of work” involved significant changes in work practices and rostering.  To achieve this outcome the mine managers were instructed by Mr Ian Smith, the General Manager, to determine the equipment resources, position functions and the number of employees required.  This exercise led to a decision that many positions would become redundant.  To facilitate the reduction in its workforce Pasminco reopened its voluntary redundancy scheme, and ceased the renewal of fixed term contract employees.  Then came the task of selecting personnel for the available positions in the new structure.  This was undertaken during May and early June 1996 by the mine managers in consultation with superintendents where necessary, other mine managers, and Mr Smith.  Although criteria varied slightly from position to position, generally the standard criteria adopted by each of the managers included:

(a)       individual skills possessed
(b)       skills applied on a day to day basis
(c)       overall performance of duties
(d)       ability to work flexibly in line with the changes required under the new structure.

Mr Edwards, the Manager, Human Resources, in evidence observed that having regard to the significant reduction in the number of employees through retrenchment programs in 1986, 1992 and 1993 it was difficult to select between employees on grounds other than skill level as most, if not all, employees were performing satisfactorily.  In the case of the applicants, the evidence generally suggests that they had been performing satisfactorily in the particular positions they respectively occupied immediately before the restructuring.  Counsel for Pasminco argues that this factor supports the conclusion that the selection criteria did not include a consideration of “conduct or performance” of a kind that could be put as an allegation to each of the applicants.

Once each manager had selected a group of people considered most appropriate to be selected for the available positions in their respective departments, a number of meetings were held between the mine managers to review the selections and to consider possible alternative positions for employees who had not been placed.  Mr Edwards said that this procedure was followed to ensure that employees who, in the opinion of any of the managers, may have been overlooked or not considered carefully enough for selection in a particular department were properly and fairly considered.  It also facilitated the removal from the list of those employees originally to be retained, who in the opinion of any manager should not be retained.  This process did involve a number of changes including the removal of the names of Messrs Napier and Parker from preliminary lists of people who were to be retained.

When the above selection process had been completed, the final plan of restructure was presented to Mr Smith for his review and consideration.  In the result, the 46 employees retrenched comprised 16 staff members, 9 mine workers and 13 tradespersons.

The evidence of Mr Edwards, and from other mine managers involved in the selection process, indicates that the manner of performance of the duties of employees in the past, and the range of skills which had been gained through experience, were important factors in the comparison which inevitably occurred in deciding which employees would be retained, and which dismissed - even where the prior performance of those under consideration had been regarded as satisfactory.  The direction from Mr Smith to all managers and superintendents was that they should select the most flexible and skilled workforce.

In answer to a request for particulars of the Selection Criteria used, solicitors for Pasminco in a letter dated 11 November 1996 said:

“The factors and characteristics which the managers took into account in deciding who to select for the available positions were individual skills possessed, skills applied, knowledge and expertise, experience, observed work traits and flexibility, and, in some instances and to some degree, observed overall performance”.

In my opinion this selection process necessarily involved, as a matter of fact, taking into account the past performance of each of the applicants including aspects of the behaviour of each applicant that could be brought to the attention of the applicants, in the form of allegations, which they very probably would want to answer.

Counsel for Pasminco contended that Kenefick v Australian Submarine Corporation Pty Ltd (1996) 65 IR 366 is distinguishable because, in that case, the selection process, whilst being made on the basis of criteria such as skills, flexibility, commitment, time-keeping, attitude, performance and supervisory requirements, also took into account a list which had been prepared by a manager of employees of concern. This “concerns list” was used as a starting point for selection. The Full Court observed, at 371-372:

“We do not share the view of the Chief Justice that the present case cannot properly be described as involving allegations against the appellants.  The concerns list contained direct allegations of inadequate performance.  The criteria set by Mr Bews included ‘performance’ and ‘timekeeping’, and the basis for termination of the appellants was described in the evidence of Mr Dawson, extracted earlier in these reasons, as relating mainly to performance.  The fact that the performance was assessed by comparison with that of other employees is not significant.  Performance criteria will always have some reference point.  The relevant consideration is that a decision is proposed to be made by accepting or rejecting a criticism of the employee.  By s170DC the employee must be given a chance to answer the criticism, whatever be the reference point upon which the criticism is made.

The evidence does not permit this case to be regarded as presenting a choice between employees, all of whom were satisfactory.  Clearly some were more satisfactory to the respondent than others.  Otherwise the respondent would have confined the selection to volunteers or, if there had been insufficient volunteers, would have determined those to be retrenched by lot or some other non-evaluation criterion.  The choice was made based on conduct or performance.  That brought s170DC into play.  This does not mean that s170DC will apply to all redundancies.  It is for the employer to choose the basis for selection for redundancy from the pool of eligible employees.  It is only if the employer chooses by reference to conduct or performance criteria that s170DC will apply.”

There are passages in the evidence of the respondent’s witnesses to the effect that before the restructure the performance of the appellants, and others who were finally selected for termination, had been satisfactory.  However, when the selection process commenced it was for the purpose of reducing the number of employees and, plainly, in that context, the purpose of the assessment was to select some of the employees who were more satisfactory to the reorganised operational requirements of the undertaking than others.  Inevitably, that selection process would take account of past conduct or performance.  Past conduct or performance in the circumstances of this case would be the primary guide to the level of skills and flexibility that were sought by Pasminco.

Whilst the absence of a document listing personnel of concern is a point of difference between Kenefick and the present case, I consider this is a case where the decision was made by accepting or rejecting a criticism of employees and it is in accordance with the decision in Kenefick that the employees had to be given a chance to answer the criticism.

I do not accept the argument of Pasminco that in the circumstances it could not reasonably have been expected to give each applicant an opportunity to defend allegations concerning past conduct or performance, and by reason of s170DC(b), it was excused from doing so.  This submission is based on the existence in the agreed retrenchment strategy of a dispute settlement procedure.  In my opinion that procedure cannot override the obligation placed on an employer by s170DC(a).  I agree with the views of the Judicial Registrar on this topic.  Moreover, the dispute settlement procedure contemplated seems to be one intended to operate before a final decision is made.  In the present case the application of the selection criteria, and the process itself, was critical to the future of each applicant.  Once a decision had been made by the mine managers and notified to the workforce, the prospect for change thereafter must have been very slight - a view held by the applicants at the time.

It is convenient at this point to look at the personal circumstances of each of the applicants as this will serve to illustrate that the decisions concerning them did involve criticisms of them, and a selection process which took into account their past performance and conduct.

Rodney Charles Carroll
Mr Carroll is aged 38.  He had been employed as a miner mainly in drilling work for 15 years.  In 1993 he suffered a serious back injury and was off work for approximately three months.  He hurt his back again in November 1995.  From January 1996 until he was retrenched he was working in the laundry on light duties.  A note prepared by Mr Boyce at the time of the selection records that he did not have current loader or dump truck tickets, did not have certain bricklaying skills, that his “performance was not equal or better in development to others retained” and that his “uphole drilling performance was considered low”.  With respect to Mr Carroll’s “ability to work flexibly”, Mr Boyce recorded “Rod was very selective in the type of work he wanted to perform”.  None of these matters was put to Mr Carroll.  In his evidence he sought to challenge their accuracy.  He claimed to have skills in many of the areas where Mr Boyce thought they were lacking.

Paul Douglas Carroll
Mr Carroll is aged 41.  He had been employed by Pasminco for 16 years.  In December 1984 he was crushed whilst driving a bogger.  When he returned to work he was assigned duties as a platman which he performed until November 1995 when he was transferred to the position of crusher operator.  Mr Hannigan was his supervisor, and Mr Hannigan was involved in the selection process.  Mr Hannigan considered Mr Carroll had failed to carry out his duties as a platman in a safe and reliable manner in 1995, and for that reason he held the view that Mr Carroll should not again be allowed to perform plat duties.  This was a factor which worked against Mr Carroll in the selection process as it restricted his flexibility.  Mr Hannigan also considered that employees who were chosen to fill the available positions worked better in a team situation than Mr Carroll.  The events of 1995 were discussed with Mr Carroll at the time, and I doubt that he was denied procedural fairness in respect of the conclusion reached by Mr Hannigan that he should not work again on the plat.  However, the value judgment that others would work better in a team situation than Mr Carroll was one which raised a question about Mr Carroll’s past performance or conduct.

Neville David Dennis
Mr Dennis is aged 39 years.  He was a tradesman fitter in a surface workshop at the North Mine until June 1996, and was then relocated to the South workshop.  Mr Dennis was disadvantaged in the selection process because he did not have dump truck skills.  He said that had he known this might affect his selection he would have explained that his lack of skills was due only to the fact that he had been denied the opportunity of obtaining a dump truck ticket because he was not an employee on a single status contract.  Mr Byrne was involved in his selection for retrenchment.  Mr Byrne took into account his observations of Mr Dennis who he had supervised during concentrator shutdowns.  He thought that Mr Dennis worked “competently but not necessarily co-operatively.  By co-operatively I mean that Mr Dennis would not, in my view, go out of his way to take on tasks additional to those allocated to him or completed by him”.  He also considered Mr Dennis was not a good machinist and did not show or practice regularly a number of relevant skills, and that he was less suitable for retention than other available employees.  In my opinion these considerations concern past performance or conduct of Mr Dennis, and could have been put to him for his response.  Mr David Mitchell who was the Manager, Engineering, was also involved in the selection process.  His evidence makes it clear that his perceptions of the skill and experience of Mr Dennis were compared with those of other employees.

Mr Dennis also asserts that he was retrenched because his immediate supervisor, Mr Gilby “had it in for him”.  The evidence of Mr Byrne suggests that Mr Gilby’s views did not influence the decision, but where there has been a history of conflict between someone who was involved in the selection process, and the particular employee, it is likely that the earlier conflict would, at least subconsciously, play a part.  Whatever event or events gave rise to the conflict would inevitably concern the past conduct or performance of the employee, and insofar as a perception adverse to the employee could be drawn from the events, they could be put to him by way of allegation.

Kosgmas Diamantes
Mr Diamantes is aged 56.  He was a mine worker who had worked underground as a sand filler since 1986.  Mr Diamantes was the only one made redundant out of the panel of employees with whom he worked.  After he was notified of the decision he was told that a comparison had been made between him and another employee who was named.  Mr Fletcher gave evidence that Mr Diamantes was rated behind 16 sand fillers who were to be retained and that he was considered not to have other skills.  Mr Diamantes says that if he had been consulted, he could have corrected a misconception by Mr Fletcher about the limited skills of sand fillers, and could have enlightened him about the range of skills and the breadth of mining experience which he possessed.  He could have explained that he would require only a short time to familiarise himself with new drilling rigs.  Again, plainly there was a comparison made which involved, to an extent at least, past conduct and performance.

Peter John McDonald
Mr McDonald is aged 45.  He was a mine worker.  Since about 1994 he had worked underground as a rock breaker operator as he suffered a rheumatoid arthritic condition which to an extent disabled him.  It seems plain on the evidence that the selection of Mr McDonald was made on the basis that his arthritic condition made him unsuitable for work other than the operation of a rock breaker.  The particular position that he had fulfilled was no longer available to him in consequence of the restructure because the new flexible work arrangements required a rock breaker to undertake other tasks.  The redundancy of his position was not on the basis of his disability, but, plainly, the fact that he was disabled affected the range of alternative jobs which he could undertake.  It seems that the managers took the view that he did not have skills that would enable him to undertake any other underground work, and that his skills did not make him more suitable than other candidates for positions in different departments.  Again, there was a comparison of skills, although it is not readily apparent that there was information which Mr McDonald could have put forward that would have been likely to alter the selection process.

Dennis Richard Manuel
Mr Manuel is aged 45.  He was employed as a salaried supervisory tradesperson, and had worked from August 1995 on the surface in the earthworks department as a trainer.  He was on suitable light duties due to a work injury.  At the time of his retrenchment he was on a single status contract.  Pasminco, in the restructuring, decided to eliminate one supervisory position.  The selection involved a choice between two people.  Mr Burgess considered the other person was better qualified and more experienced to fill the position.  Mr Manuel believes that on their respective past performances he was the most suitable candidate, and had he been afforded the opportunity to do so, he could have explained his position.  Moreover, in the selection process Mr Manuel was only considered for supervisory work and not for operator positions because of an opinion that had been expressed to Pasminco by Mr Manuel’s neurosurgeon.  Mr Manuel says that had he known of this factor he would have made Pasminco aware of favourable aspects of his medical prognosis, and aspects of his past experience that would suit him for light plant operating, and the supervision of contractors.

Mark Gregory Napier
Mr Napier is aged 30 years.  He had been employed for seven years as a mine worker.  On termination he was working as a development miner but had at an earlier time worked suitable light duties for a knee injury suffered in the course of his employment.  Mr Napier believes that he was selected for dismissal because of a “run in” he had with Mr Butcher, his supervisor.  The evidence of Mr Smith indicates that it was he, not Mr Butcher, who had input into Mr Napier’s final selection.  Towards the end of the selection process Mr Smith asked the managers who were involved in the selection to take his views into account.  Mr Smith said to them words to the effect “Mr Napier could work hard when he wanted, but he could also be over aggressive, bad tempered, abusive and surly both with management and his work mates”.  At a discussion on 19 July 1996 Mr Smith informed Mr Napier that his ability to be an effective member of a team was an issue.  These are matters concerning the conduct or performance of Mr Napier which were not put to him before the decision to select him was made.  Mr Fletcher was also involved in the selection of Mr Napier, and he thought Mr Napier’s skills did not bring him within the top 64 development miners who were to be selected.  Mr Napier gave evidence that Mr Fletcher misapprehended his level of skill and experience and had he been consulted, he could have corrected the position.

Ronald James Parker
Mr Parker was aged 59.  He was a mine worker who worked underground driving dump trucks, but described his experience of working “mixed functions” for one third of the time on each shift.  Mr Fletcher was involved in Mr Parker’s selection.  Mr Fletcher in his affidavit evidence said that Mr Parker was selected because he did not possess skills other than as a dump truck driver, and he did not fall within the top 32 mine workers with dump truck driving skills.  He understood that Mr Parker did not possess other skills such as sand filling or shot creting.  In his oral evidence Mr Fletcher modified these views to acknowledge some skills in areas other than dump truck driving, but considered Mr Parker’s experience elsewhere was limited.  Mr Parker contends that this assessment of his past experience, and of the functions he performed, misapprehended the true position.  Had he been consulted he could have explained his mixed functions duties.

Ronald John Simmons
Mr Simmons is aged 52.  He suffered a serious work injury in about 1975.  Following that he worked as an attendant in the lamp room.  In the restructuring, the lamp room duties became ancillary duties performed by ambulance officers.  His job became redundant.  Mr Mitchell was involved in the selection process which concerned Mr Simmons.  Mr Mitchell considered Mr Simmons had less skills than those against whom he was being considered for other positions.  For example, it was considered that he did not have skills as a truck driver, forklift driver or storesperson.  In the case of Mr Simmons, the limitations in his capacity for work were more clear cut than with the other applicants, but nevertheless his skills were subject to a comparison with other employees, and the perception that he was limited in what he could do and should have been put to him.

For the reasons given, I consider that s170DC was contravened in respect of each of the applicants other than Mr Borlace.

I consider this conclusion makes it unnecessary to analyse in detail the arguments that were advanced on the applicants’ behalf in support of the assertion that no valid reason existed under s170DE(1).  Those arguments largely depended on the proposition that procedural fairness had not been extended to the applicants in the assessment process so that, even under the second limb of s170DE(1), Pasminco had not discharged the onus of proving that the dismissal of each of them individually was for a valid reason: see Cosco Holdings Pty Ltd v Do (1977) 150 ALR 127 at 149. The argument asserts that a reason will not be “valid”, unless it is in relation to each employee who was dismissed, “well-founded and applicable, sound, defensible”: see the Shorter Oxford Dictionary definition of “valid”, and Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373.

I consider the evidence establishes that, but for the failure to extend procedural fairness in the selection process as required by s170DC, the termination of the employment of the applicants was relevantly based on the operational requirements of Pasminco’s undertaking.  The terminations had a real, not merely specious, foundation in those requirements: Cosco Holdings Pty Ltd v Do at 149-150. Therefore, even if the applicants’ arguments regarding the second limb of s170DE(1) are correct, the conclusion would take the matter no further as I have already concluded that there was a contravention of s170DC which enlivens the remedy provisions of Div.3 Part VIA of the Act.

A further submission was made on this aspect of the case that the terminations were for an invalid reason because Pasminco failed to observe the provisions of clause 29.2 of the 1993 Mines Agreement.  That clause provided that when retrenchments occur Pasminco has the right to discharge according to ability for the particular job, but in cases where there is equality with regard to ability, then seniority will be observed.  On the view that was taken by the managers involved in the selection process, an occasion to apply clause 29.2 did not arise.  Perhaps it might have arisen had the requirements of s170DC been carried into effect, but that is a matter of speculation.

In my opinion the evidence does not establish a contravention of the provisions of s170DF(1) in the case of any of the applicants.

Three applicants have expressed a strong view that they were dismissed because of their age.  The evidence of the respondent’s witnesses is uniformly to the effect that age was not one of the criteria taken into account in the selection process.  I am not persuaded by the evidence that I should discard the evidence of the respondent’s witnesses on this topic.  Although there were a number of older members of the workforce who were dismissed, there were also a number of younger members.  The dismissals were spread across a number of age brackets.  It is understandable that the older applicants may feel that their age played some part in their dismissal but I am satisfied that the respondent has established on the balance of probabilities that this was not the case.

I am also satisfied that none of the applicants’ employment was terminated for a reason which included physical or mental disability.  A number of the applicants were carrying the after effects of work injuries and feel that this played a part in their selection.  However, the respondent’s witnesses say that this was not a reason for their termination.  In the case of Mr R Carroll, his position in the laundry disappeared on the restructure.  The other applicants were assessed as members of a pool from whom some were selected according to the predetermined criteria.  At this stage in the selection their health was not considered.  However, once they were not selected to fill positions that were available to members of the particular pool, the managers then considered whether there were positions elsewhere in the undertaking for which they were suited.  Consideration was also given to the possible placement of Mr R Carroll elsewhere.  At this point the fact of his disabilities was taken into account, in my view entirely appropriately, as the employer is under a duty not to assign work to an employee which, having regard to the disability of the employee, could risk further injury.  Insofar as this consideration may have reduced the prospects of a particular applicant being transferred to another position that may have been an indirect reason for the ultimate termination of the applicant.  However, in that situation the termination, so far as it was based on reasons of disability, it was based on the inherent requirements of the particular position and does not constitute a contravention of s170DF(1).

I am also satisfied that the employment of none of the applicants was terminated for a reason which included union membership or participation in union activities.  The evidence led by the applicants on this topic was sparse, and again the respondent’s witnesses denied that union membership or union activities played any part in the selection process.  The applicants sought to gain support for the argument by expressing their opinions that single status contracts were not available to union members.  I have already dealt with that topic in relation to the claim of Mr Borlace.  The single status contracts contained a term to the contrary.  The evidence does establish that work at the Potosi mine was only available to employees on single status contracts, but that is not the same thing as the employment only being available to non union members.

The Judicial Registrar held in the case of Mr Dennis that he was dismissed indirectly because of his participation in union activities.  The Judicial Registrar held that “Mr Dennis’ union activities resulted in him being denied the opportunity to work at Potosi and therefore reduced his value to the respondent”.  In my opinion the evidence shows that Mr Dennis was denied the opportunity to work at Potosi as he was not prepared to sign a single status contract.  A single status contract was first offered to him in about February 1995 and there was continuing discussion about the advantages and disadvantages of single status contracts throughout 1995 and the early part of 1996.  Had Mr Dennis accepted a single status contract, and worked at the Potosi mine, it seems that he would have been offered the opportunity to obtain a ticket as a dump truck driver.  As he had declined to become an employee on a single status contract, this offer was not made to him, and subsequently he did not have a dump truck driver’s ticket when the selection process occurred.  Presumably it is to this matter that the Judicial Registrar refers when speaking of Mr Dennis having a reduced value to the respondent. 

Even if Mr Dennis’ decision not to accept a single status contract was directly due to his union membership or union activities, the connection between that fact and the significance in the selection process of him not having a dump truck driver’s licence is so remote that I do not consider that the reasoning process of the Judicial Registrar could support the conclusion that his employment was terminated for a reason that included union membership or participation in union activities.  In my view the evidence does not establish the essential first step in the argument, namely the relationship between union membership or activities and the fact that Mr Dennis was not on a single status contract.

There was a passing suggestion that Mr Napier was dismissed because of temporary absence because of illness or injury, contrary to s170DF(1)(a).  There is no evidence to support the suggestion.

There remains for consideration the claims made in the associated jurisdiction by the applicants other than Mr Borlace.  In my opinion the evidence regarding the history of industrial regulation in Broken Hill, and the behaviour of the parties in the course of their employment relationship justifies the conclusion reached by the Judicial Registrar that Pasminco and the applicants are bound by the 1993 Mines Agreement and the agreed retrenchment strategy.  It was in accordance with the custom and traditions of Broken Hill mining operations that the BIC act on behalf of members of the union in putting in place agreements of that kind which then became binding on both the employers and their employees.  Under these agreements the employees of Pasminco became entitled to a payment of three months’ pay in lieu of notice in the event of redundancy, under Part D of the Pension Fund.  These payments were in fact made.  I agree with the Judicial Registrar that these agreements provided for the payments to be made in the event of employment being terminated on the grounds of redundancy, and that the common law claims which the applicants seek to pursue are inconsistent with the rights accorded to them under the agreements.  In any event I agree with the submissions of Pasminco that if a reasonable period of notice were required, it would not exceed the period of three months and three weeks in respect of which payment has been made.  The fact that payments for 3 months and 3 weeks in lieu of notice were made means that the claims under s170DB are also misconceived.

The associated jurisdiction claims also include claims for damages for breach of implied terms of the contract of employment although these were not really pressed on the review as constituting independent claims as opposed to constituting additional reasons why a “valid reason” did not exist under s170DE.  I do not think it is necessary to explore the difficulties that face an attempt to imply such terms, and to establish a breach where the act relied upon is the termination of the contract of employment, rather than an event occurring in the course of an ongoing contract.  In my opinion, even if breaches occurred, for example because Pasminco took into account matters not raised with the employees, the damages in this case would not exceed the amounts payable as compensation under s170EE.

On the claim in the associated jurisdiction for damages for breach of an implied term to fulfil rehabilitation obligations, I agree with the Judicial Registrar’s reasons for dismissing this claim.  The matters relied on as constituting breaches occurred after the contracts had been terminated.

Remedies
Reinstatement orders were made by the Judicial Registrar in respect of Messrs R Carroll, P Carroll, Napier and Manuel.  Each of these applicants at the time of the terminations were affected by a disability to a greater and lesser extent as a result of previous work injuries.  They seek to uphold the reinstatement orders, and Mr Dennis also seeks reinstatement.  The other applicants do not.  In support of the reinstatement orders counsel for the applicants relies heavily on the decision of the Full Court of the Industrial Relations Court of Australia in Anthony’s Smith & Associates Pty Ltd v Sinclair (1996) 67 IR 240. In that case retrenchments had occurred because of a downturn in the business of the employer. Ultimately an order was made for the reinstatement of one of the retrenched employees. The order was made notwithstanding that the position originally held by the employee had disappeared in the course of a restructure. The Court ordered that the employee be reinstated “to another position on terms and conditions no less favourable than those on which the employee was employed immediately before the termination” even though this might require the employer to create a new position.

It is important to recognise that the discretion in the Court under s170EE to award reinstatement is a wide one to be exercised having regard to all the circumstances of a particular case.  This is made clear first by the qualification in s170EE(1) that the Court “may, if the Court considers it appropriate in all the circumstances of the case” make such an order, and secondly, in s170EE(2) which empowers the Court to award compensation “if the Court thinks ... that the reinstatement of the employee is impracticable...”.  The decision in Anthony Smith and Associates Pty Ltd v Sinclair must be understood in the context of the particular facts of that case.  In my view the facts are quite unlike those presently before the Court.  In particular, by the time the reinstatement order was made in that case, there had been an unexpected upturn in the fortunes of the company’s business.

In the present case there is a long and clearly established history of declining fortunes in mining operations at Broken Hill, and in particular in the operations of the respondent.  This has been due to declining world metal prices and the decline in the quality and quantity of reserves.  In the present case the fortunes and profitability of Pasminco have not unexpectedly improved since the restructuring.  On the contrary the world zinc price has dropped dramatically since July 1997.

As earlier observed, the respondent’s evidence that the restructuring was a necessary operational requirement of Pasminco’s mining operations at Broken Hill is not really challenged.  Submissions were made that the extent of the retrenchments that were necessary to achieve the aims of the restructure were misjudged by Pasminco, and evidence was directed to the extent to which overtime and contractors have been used since July 1996.  However, the engagement of contractors for construction and maintenance, and the use of contractors and overtime to cover fluctuations in work demands, were established practices before the restructuring, and are rational management techniques that do not invalidate the rationale or necessity for the restructure.

Once it is accepted that the operational requirements of Pasminco’s undertaking required, after allowing for voluntary redundancies, a further 46 involuntary retrenchments, logic suggests that the reinstatement of five former employees, if they are to be usefully employed, would require the displacement of five other people.  Moreover, the evidence of senior management of Pasminco is that there is not presently useful work for the applicants seeking reinstatement, and that their services would be superfluous to the needs of the reorganised structure. 

In these circumstances, it seems to me that reinstatement of the five applicants who still seek it is not a realistic or appropriate course. In my opinion reinstatement is in all the circumstances impracticable and should not be ordered. The evidence of each of the applicants naturally incites sympathy for their position, and because of the difficulties which they are likely to face in obtaining other employment. However, their entitlement to reinstatement must be assessed according to the provisions of the Act, and the consideration of whether reinstatement is in all the circumstances impracticable.

On behalf of the five applicants in respect of whom reinstatement was ordered by the Judicial Registrar, it was contended that their need for rehabilitation from work injuries provided a special reason for ordering reinstatement.  The difficulties which these injured employees would face in the open labour market if reinstatement is not ordered are well known, and would be further magnified by the difficult economic circumstances which exist in Broken Hill.  Those well recognised difficulties that face many injured employees who lose employment are addressed in the relevant workers compensation legislation, and if rehabilitation services are not provided in the employer’s workplace, the legislation makes other provision for it, and for compensation because the injured employee is no longer receiving a wage at work.  These statutory remedies have been pursued by the applicants. Messrs R Carroll, Napier, Manuel and Parker are receiving workers compensation.  Messrs Diamantes, McDonald and Simmons have workers compensation claims pending.

In my opinion it is appropriate in all the circumstances that the Court proceed to assess compensation under s170EE(2).  In assessing compensation, it is common ground that there is a statutory maximum which caps compensation at $32,000.  However, the proper approach is to assess compensation without regard to that cap, and if the assessed amount exceeds the cap, to reduce the award to the amount of the cap.  This was the approach of the Judicial Registrar.

The starting point for the calculation, directed by s170EE(3), is to have regard to the remuneration which the employee would have received if the employer had not terminated the employment.  It is necessary for the Court to have regard to the contingencies that may have brought the employment to a premature end.  The principle consideration in this case is whether, had the contravention of s170DC not occurred, each applicant may nevertheless have been selected for retrenchment, and his employment terminated on the date on which termination in fact occurred.  If this were the case, no compensation could be payable.

The Judicial Registrar assessed compensation on the basis that even if the applicants had not been dismissed in 1996, their employment would probably not have continued beyond another four years.  The restructure was intended to keep the operations of Pasminco at Broken Hill profitable at least to the year 2000.  The four year period seems appropriate, and I propose to use that period in the same way as did the Judicial Registrar.

It is necessary for the Court also to have regard to actual and potential earnings which each applicant might receive in other employment, and to workers compensation received, or likely to be received, pursuant to the statutory remedies earlier mentioned, which will have the effect of reducing the loss of remuneration: Kenefick v Australian Submarine Corporation, (unreported, Full Court of the Industrial Relations Court of Australia, 8 July 1997).

In assessing the contingencies, the applicants urge that, had they been heard, they would have convinced the relevant managers that there were jobs that they were able to perform, that they had the necessary skills, and that they should have been preferred over others.  Against this there is the evidence of senior managers of Pasminco, in particular Mr Smith, that the matters which the applicants, individually, say they would have brought to the attention of the decision-makers, would not have led to any different result.  It is the respondent’s case that the applicants would have been selected for termination notwithstanding the additional information described by the applicants in their evidence.  The Court is able to note the contrasting positions taken by the two parties, but it is not possible to resolve the matter on the merits.  The decision was one to be made by the managers in consultation having regard to a variety of considerations which cannot be presented to the Court in a way that reproduces the situation in which the decisions were made.  The most that can be said is that the decisions were made without the benefit of the additional information that may have been provided by the applicants, and the possibility that the decision would have been different cannot be dismissed entirely.

I agree with the Judicial Registrar that it is not appropriate to bring to account redundancy payments actually made to each of the applicants.  Pasminco’s mining operations have a finite life.  There is a high chance that redundancy would have been inevitable within about four years anyway.

It is necessary to look at the situation of each applicant separately.

Mr R D Carroll
Mr Carroll also worked in the laundry on light duties.  Like Mr Caldwell he receives workers compensation in respect of a drop from his wages as a driller to those received in the laundry.  I disregard those compensation payments and start with the laundry wage, shown in Exhibit A106 as $686 (disregarding cents).  Various additional benefits paid by the employer total approximately $130 including the lead bonus, holiday leave loading, and Pension Fund, sickness fund and dental clinic contributions.  The addition of these venefits gives a weekly rate of about $816 and a cap of $21,216.

The loss over a notional four year period would be $169,728.  Mr Carroll has earned nothing since his dismissal, in part perhaps as he has undertaken a course in carpentry at the Broken Hill TAFE.  He says he is fit for a range of light to moderate duties including driving and plant operation.  Some allowance must be made for his capacity and prospects to earn over the next two years.  As Mr Carroll’s position in the laundry was abolished the prospect that he would have been dismissed even if all the information he has advanced at trial had been made known to Pasminco during the selection process was high I consider the net loss over four years should be discounted by about 80 per cent.  Even if Mr Carroll is lucky enough to find work in the next two years, it is likely to be casual, and not reduce his loss sufficiently to bring his entitlement under the cap.  I award him $21,216.

Mr P D Carroll
Mr Carroll was employed as a crusher operator on a weekly wage of $1,058 - with extra benefits his remuneration was about $1,187.  This gives a cap of $30,862 and a nominal gross loss over four years of $246,896.  He has earned $1,340 since his dismissal and there is no entitlement to workers compensation to be brought to account.

Notwithstanding the matters which Mr Carroll says were not taken into account in the selection process I consider the prospect that he would have been selected for retrenchment anyway was high and a discount factor of about 75 per cent should be applied.  I do not think the prospects of him receiving remuneration from other work in the next two years would justify reducing his award below the cap.  I award him $30,862.

Mr Dennis
After making an adjustment for allowances, Mr Dennis’ weekly remuneration was about $895 giving a cap of $23,270 and a gross loss over a notional four year period of $186,160.  He has no entitlement to workers compensation.  His earnings since dismissal have been $25,969.  It would be reasonable to assume he will earn about the same again over the next two years, reducing the notional loss over four years to about $134,222.  The Judicial Registrar applied a discount rate of 60 per cent.  I think that is an appropriate discount.  The Judicial Registrar fixed the cap, and the award at $23.166.  It is so close to the cap I assessed, that I do not propose to vary the award already made.  It is impossible on the evidence to be precise to the last dollar in fixing the weekly remuneration and additional benefits.

Mr Diamantes
After making an adjustment for allowances, Mr Diamantes’ weekly remuneration was about $1,260 per week, giving a cap of $32,000, and a gross loss over a notional period of four years of $262,080.

Mr Diamantes has made a workers compensation claim that may result in him receiving about $35,800 for past weekly compensation, and continuing weekly payments of $263.30. He has received no remuneration from other sources since dismissal, and his prospects of doing so over the next two years are probably negligible.  The Judicial Registrar thought Mr Diamantes had a 90 per cent chance of being retrenched anyway.  I agree that a 90 per cent discount is appropriate.  As the workers compensation claim is yet to be resolved I propose to deduct only one half the amount claimed and assume that the above figures represent the position as at April 1996.  This reduces the notional loss over four years to about $230,000.  Ten per cent of this sum is $23,000.  I award that sum as compensation.

Mr McDonald
After allowances, Mr McDonald’s weekly remuneration was about $1,187 giving a cap of $30,862 and a notional loss over four years of $246,896.  Mr McDonald also has an outstanding workers compensation claim for $30,793.78 and ongoing payments of $263.30 per week.  He has not received remuneration from other sources.  Because of his health, remuneration from other employment over the next two years is negligible.  Again, I deduct one half the potential compensation payments to reduce the notional loss over four years to about $218,518.  In my opinion a discount factor of about 85 per cent should be applied.  As the result exceeds the cap, I award $30,862.

Mr Manuel
As a single status contract employee his annual salary was $50,500.  It is not clear from Exhibit A106 whether there should be an adjustment for the various contributions received by other applicants, but I have assumed this to be the case except that the pension contribution is 11 per cent of salary, not $65.78 per week.  After adjustments I assess the weekly remuneration at $1,140, giving a cap of $29,640, and a gross notional loss over four years of $237,120.

Mr Manuel has since his dismissal earned $6,370 tutoring, and from self employed work.  I assume a likelihood of similar earnings over the next two years.  Mr Manuel has also received $52,945.25 for past weekly compensation, and continues to receive $374.20 per week.  Adjustments for these actual and expected receipts reduces the notional loss to about $130,000.

In my opinion a discount factor of 80 per cent should be applied to reflect the chance of retrenchment even if Mr Manuel had been given the opportunity to put his case.  I therefore award him $26,000 compensation.

Mr Napier
His remuneration as a development miner, after allowances, was about $1,510 per week, giving a cap of $32,000 and a notional four year loss of $314,080.

Mr Napier has received no remuneration from other work since his dismissal, but has received $44,332.48 weekly compensation and continues to receive $516.40 per week.  Adjustment for these payments reduces the notional loss by about $110,000 to, say, $204,000.

I consider the appropriate discount to be applied is 80 per cent which gives a result which exceeds the cap.  I award $32,000.

Mr Parker
According to Exhibit A106 Mr Parker’s wage as a dump truck operator was $1,231.96 per week plus benefits which gave him remuneration of about $1,350 per week.

However, when he was dismissed he was on light duties receiving a wage of $686, which, with allowances gives a remuneration rate for present purposes of about $816 per week.  On the basis that this lower figure is adopted, past and continuing workers compensation payments are to be disregarded.  He has received no remuneration from other sources, and is not likely to do so in the next two years.

The relevant cap on these figures is $21,216.  The notional loss over four years is $169,728.  I think the discount rate should be somewhat higher than the Judicial Registrar adopted.  I would fix it at 80 per cent.  The result still exceeds the cap.  The Judicial Registrar fixed the cap, and the award, at $20,424.  As I have already said in the mass of information available in evidence, and in submissions, it is not possible to be certain about the figures.  But I propose to increase the award to $21,216.

Mr Simmons
His adjusted remuneration is about $840 per week giving a cap of $21,840 and a notional loss over four years of $174,720.  However, he has outstanding claims for workers compensation of past weekly payments since dismissal of $40,333.70, and ongoing weekly payments of $332.70.  I deduct 50 per cent of these potential receipts to reduce the notional four year loss to about $136,255.  I think the probability is very high that Mr Simmons would have been selected for retrenchment, even if he had been offered an opportunity to present his case to the decision-makers.  I agree with the Judicial Registrar’s assessment that the discount should be 90 per cent.  I therefore award $13,625.

I do not think it is appropriate in the circumstances of this case to allow any additional amount in the award to any applicant for distress.  Dismissal in virtually every case will cause the employee disappointment, distress and a host of unpleasant personal feelings.  Some employees will suffer a greater reaction than others.  But in the ordinary run of cases no allowance for hurt feelings or distress is made.  In Burazin v Blacktown City Guardian (1996) 142 ALR 144 the Full Court of the Industrial Relations Court of Australia, increased an award to reflect the distress and humiliation that was caused by the circumstances of a dismissal. The present case is quite unlike that case. Here management personnel in Pasminco had to notify 46 people of their retrenchment within a short time span. The applicants were spoken to personally and in private, and informed about their entitlements. I do not think they were notified in a way that could be described as unusual.

Mr Borlace
He is entitled to 13 weeks pay.  His base rate was $1,222.08 and with additional benefits was about $1,350.  I award him $17,550.

For these reasons I make the following orders:

1. On the notice of motion by Paul Thomas Borlace in action SG16 of 1998, set aside the decision of the Judicial Registrar and enter judgment in favour of Paul Thomas Borlace for $17,550.

2. The notice of motion by Neville David Dennis in action SG17 of 1998 is dismissed.

3. On the notice of motion in action SG11 of 1998:

   (a)dismiss the notice of motion in relation to Neville David Dennis and confirm judgment in favour of Neville David Dennis for $23,166.

   (b)set aside the awards made by the Judicial Registrar in favour of the remaining applicants and in lieu thereof award compensation as follows:

$
Rodney Charles Carroll		21,216
Paul Douglas Carroll		30,862
Kosgmas Diamantes		23,000
Peter John McDonald		30,862
Dennis Richard Manuel		26,000
Mark Gregory Napier		32,000
Ronald James Parker		21,216
Ronald John Simmons		13,625
I certify that this and the preceding fourty-one (1) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice von Doussa J

Associate:

Dated:     7 July 1998

Counsel for the Applicant:	Mr B G Docking
Solicitor for the Applicant:	Buckworth Keady Chalker
Counsel for the Respondent:	Mr H Dixon
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	30, 31 March, 1, 2, 8 April 1998
Date of Judgment:	7 July 1998