Shanks v Amec Engineering Pty Ltd No. DCCIV-99-156

RAYMOND THOMAS SHANKS V AMEC ENGINEERING PTY LTD
[2000] SADC 99

Judge Muecke
Civil

Introduction

In this action the plaintiff claims damages for wrongful termination of his contract of employment by the defendant AMEC Engineering Pty Ltd (‘AMEC’).
It is common ground that there was a contract of employment between the plaintiff and AMEC. The plaintiff contended that contract was oral and was entered into on 19 December 1997 between himself and Mr Hugh MacDougall on behalf of AMEC at AMEC’s offices in Adelaide. Those terms were confirmed by AMEC by letter to the plaintiff dated 2 February 1998. Alternatively, the plaintiff contended that the letter dated 2 February 1998 and annexures represented the contract of employment insofar as their contents were consistent with the oral agreement made on 19 December 1997, but not otherwise. In particular, the plaintiff contended that his contract did not provide for AMEC to terminate his employment upon one month’s notice.
In its Defence AMEC contended that it entered into a contract of employment with the plaintiff which was partly oral and partly in writing. Insofar as the contract was oral, its terms were agreed between the plaintiff and Mr MacDougall in the discussion on 19 December 1997. AMEC did not particularise these express oral terms. Insofar as the contract was in writing its terms were set out in a letter from AMEC’s General Manager, Mr Keith Wildman, to the plaintiff dated 2 February 1998, together with a statement attached thereto entitled ‘AMEC Engineering Pty Ltd Statement of Main Terms and Conditions of Employment’ (‘Main Terms and Conditions’).
In addition to the express terms of the contract of employment between it and the plaintiff AMEC alleged that the plaintiff was under an implied duty to AMEC:
(a)to exercise reasonable care, skill and competence in the performance of his duties;
(b)to act with fidelity and good faith towards AMEC and in its interests; and
(c)to act at all times so as to maintain a relationship of trust and confidence between himself and AMEC.
It was alleged that these terms were to be implied by reason of the nature of the employment, the relationship between the parties and in order to give business efficacy to the contract.
The plaintiff’s contract with AMEC was terminated by AMEC on Tuesday 14 July 1998. On that day Mr MacDougall gave the plaintiff a month’s notice. The termination and notice were given to the plaintiff orally.
The next day, on Wednesday 15 July 1998, Mr MacDougall wrote to the plaintiff by facsimile transmission informing him that he was not required to work out his notice period. He was required to vacate AMEC’s Roxby Downs office by 12 noon that day. His keys, mobile phone, company vehicle and any other company property in his possession were to be left at the office. He was allowed to have use of the company residence until close of business on 14 August 1998.
The plaintiff’s claim was that the termination by AMEC of his contract of employment was ‘without just cause or lawful excuse’.
In its Defence AMEC denied that claim and alleged that it terminated the plaintiff’s contract of employment by the payment of one month’s wages in lieu of notice ‘as required by the contract of employment between the plaintiff and the defendant’. AMEC further alleged that in any event it had proper cause to terminate the plaintiff’s contract of employment by reason of the breach of his duty to act with due care, skill and competence in the performance of his contract of employment and the breach of his duty to maintain a relationship of trust and confidence by reason of his failure:
(a).... to maintain a satisfactory relationship between the defendant and its principal client at Roxby Downs, Western Mining Corporation;
(b)to manage the defendant’s staff at Roxby Downs;
(c).... to maintain adequate reporting to the defendant’s head office in Adelaide;
(d)to ensure proper internal office procedures at Roxby Downs for the purposes of invoicing customers, cost control and internal administration.

Contract of Employment

Both prior to and during 1997 AMEC was a company carrying on business in South Australia as a provider of building maintenance services. It provided those services under contracts with a number of companies. Between 1992 and 1997 inclusive, AMEC (then known as Mayfields) provided maintenance services to Kimberley-Clarke at Mount Gambier. It also performed maintenance services for other companies in the south-east of South Australia. It had an office in Mount Gambier with an office and maintenance staff of about six or seven. The plaintiff was the Branch Manager of AMEC’s office at Mount Gambier during that period. He managed the Kimberley-Clarke maintenance contract and obtained maintenance work for AMEC from other companies. He managed AMEC’s office and staff.
Between May 1992 and August 1997 the plaintiff provided management services to AMEC as its Branch Manager at Mt Gambier through the plaintiff’s company RKS Controls Pty Ltd. The plaintiff’s services, through his company, were provided exclusively to AMEC.
As at August 1997 the plaintiff was 49 years of age and was married. He and his wife lived in Mount Gambier in an old house which they had purchased in about 1995. They had renovated the house and were running a bed and breakfast there, although the business was principally run by the plaintiff’s wife. In the early days patronage was not strong but it was, by late 1997, building up and improving.
In about late August 1997 AMEC knew that its contract with Kimberley-Clarke would not be renewed. It had decided to wind down its branch at Mount Gambier. There was no suggestion by any of the witnesses called on behalf of AMEC at the trial that the plaintiff’s performance as Branch Manager at Mount Gambier for over five years was other than satisfactory. On the contrary, I infer from the evidence of Mr MacDougall that the plaintiff was offered the position as Branch Manager of AMEC’s Roxby Downs operation because of the high regard in which the plaintiff was held by AMEC.
Following the decision to wind down its branch activities in Mount Gambier the plaintiff worked for AMEC on a number of other projects. These were performed in Adelaide and for some months the plaintiff commuted between Adelaide and Mount Gambier. His wife remained living in their house at Mount Gambier.
When driving home to Mount Gambier one Friday afternoon in early December 1997 the plaintiff answered a telephone call from Mr Hugh MacDougall. Mr MacDougall had just taken a new position with AMEC as the manager of its maintenance and shutdown division. He had transferred from Victoria to take up that position in Adelaide. The position brought with it responsibility for administering a new ‘contract’ which AMEC had with Western Mining Corporation (‘Western Mining’) at Roxby Downs and Olympic Dam. (I have put ‘contract’ in quotation marks because it emerged that certain executives within AMEC and Western Mining had different views as to whether or not there was a contract.) Pursuant to that contract AMEC was responsible for the maintenance of all buildings owned by Western Mining at Roxby Downs and Olympic Dam. I shall refer to this contract in these reasons as the ‘Alliance contract’. Mr MacDougall took over responsibility for the Alliance contract in September 1997.
The Alliance contract was not tendered at trial. However, I gather that it had been sent to AMEC by Western Mining on the basis that its then terms constituted the terms that Western Mining were offering to AMEC to accept. AMEC signed the contract and returned it to Western Mining. As at September 1997, and at least until July 1998 when the plaintiff’s contract was terminated, it was not signed by Western Mining. AMEC considered it to be a binding contract. Certain executives of Western Mining did not. AMEC sought to provide its maintenance services at Roxby Downs for Western Mining after September 1997 on the basis of the Alliance contract. Certain executives of Western Mining sought that AMEC provide its maintenance services on some other inconsistent basis.
Prior to August 1997 AMEC performed maintenance services at Roxby Downs. It did so using sub-contractors with a variety of trades skills used for maintenance services. The work sub-contractors performed was principally for AMEC. At about the time the Alliance contract was being negotiated AMEC indicated to its sub-contractors that by virtue of the Alliance contract it would no longer engage them as sub-contractors. They would become employees of AMEC. The sub-contractors were not happy to become employees because they perceived their independence would be lost as would certain work practices which they enjoyed at Roxby Downs.
Between August and December 1997 AMEC provided maintenance services to Western Mining at Roxby Downs through its newly employed maintenance staff. These services were provided on an ad hoc basis. There were few proper systems and controls by way of management services in place. There was a supervisor for the maintenance employees and a clerical or administrative assistant in the office out of which AMEC operated at Roxby Downs. There was no manager for AMEC on site at Roxby Downs.
In December 1997 the plaintiff was well known to Mr MacDougall. They had known each other since 1994. They had become good friends. Mr MacDougall was looking for a manager for AMEC’s Roxby Downs branch. He considered that the plaintiff would be most suitable for that position and consequently he telephoned the plaintiff in early December 1997. He made it clear to the plaintiff that there were two fundamental requirements for the job. They were that the plaintiff would be required to become a member of the staff of AMEC (rather than provide his services through his company RKS Controls Pty Ltd) and he would need to make a commitment to go to Roxby Downs for a minimum of two years. The plaintiff told Mr MacDougall that he would discuss the proposal with his wife that weekend.
The plaintiff and Mr MacDougall met to discuss the proposal in detail on 19 December 1997 in AMEC’s offices in Adelaide. At a meeting that lasted for about an hour the two men negotiated the terms on which the plaintiff would accept the position as AMEC’s Branch Manager at Roxby Downs. I find that at that meeting Mr MacDougall did not go into much detail about the Alliance contract and the operations of AMEC’s branch at Roxby Downs. The plaintiff was familiar with the general requirements of being a Branch Manager for AMEC because he had performed the same role at Mount Gambier for over five years. Most of the negotiations were about the terms upon which the plaintiff would accept the appointment at Roxby Downs. I accept that Mr MacDougall made it clear to the plaintiff that his organisation was interested in a long term relationship with Western Mining at Roxby Downs and that that posed some potential difficulties because there were some issues about that relationship. They included what the actual role of AMEC was going to be in Roxby Downs in the long term. Mr MacDougall also mentioned the fact that AMEC’s employees had previously been sub-contractors and that that was an ongoing issue with the employees.
I find Mr MacDougall stressed the two matters about which he and the plaintiff had spoken on the phone earlier in the month. He made it clear to the plaintiff that the person accepting the position needed to know that he was going to be at Roxby Downs for some time and that he had to commit to that job for a minimum of two years. He said that if the person who was fulfilling the role was happy up there then he could continue after two years. However if he wanted to leave Roxby Downs after that time then a position would be made available for him in Adelaide to accommodate his skills.
The other matter that was stressed by Mr MacDougall was that the Roxby Downs manager would have to be a member of the staff of AMEC. I find that the plaintiff told Mr MacDougall that would cause him some embarrassment, at least in the short term, because of the way his finances were structured through his service company. He also told Mr MacDougall that his accepting the position would mean the closure of the bed and breakfast business conducted at his Mount Gambier house. Pending sale of that house he would prefer to maintain for as long as possible the position whereby his services at Roxby Downs were provided through his service company.
I find that following these discussions the plaintiff and Mr MacDougall agreed on a compromise. The plaintiff would accept the position of Branch Manager of AMEC’s Roxby Downs office for a minimum period of two years. He would provide his services from 1 January 1998 to 31 March 1998 through his service company. From 1 April 1998 he would become an employee of AMEC. Mr MacDougall compromised with the plaintiff because it appeared to him that the plaintiff was not prepared to take the job at Roxby Downs unless he had some time to sort out the affairs of RKS Controls Pty Ltd and the impact the proposed job would have upon his private financial arrangements.
It was important to AMEC that the plaintiff become an employee. That was because AMEC was moving away from sub-contract arrangements with people in staff positions. AMEC had moved away from sub-contractors in trades positions in Roxby Downs in the later half of 1997.
At their meeting on 19 December 1997 the plaintiff and Mr MacDougall discussed remuneration. For the period 1 January 1998 to 31 March 1998 the agreed rate was $80,000 gross per year. Mr MacDougall did a calculation to convert that salary to a sub-contract amount for those three months. From 1 April 1998 the plaintiff would receive a salary of $80,000 gross per year which would include a remote site allowance of $25,000. The two men agreed that after two years at Roxby Downs the plaintiff would return to Adelaide and work for AMEC in a position to be found for him.
The two men discussed when the plaintiff would commence work. It was decided that he would have a short holiday and return to Adelaide on 5 January 1998 for a briefing and then travel up to Roxby Downs. The two men then shook hands. Mr MacDougall said that he would draft a letter reflecting their agreement and in due course would send it up to Roxby Downs.
Mr MacDougall wrote to the plaintiff by letter dated 2 February 1998 signed by AMEC’s General Manager Mr Keith Wildman. Mr MacDougall said that letter embodied the terms of the agreement that had been made between he and the plaintiff on 19 December 1997.
The letter was expressed to be ‘formal confirmation that your employing company will be AMEC Engineering Pty Ltd’. The letter referred to an attached statement which was said to apply to the plaintiff’s position with AMEC. The statement was the Main Terms and Conditions of Employment. The letter stated that ‘these conditions supersede all previous conditions and amendments whether oral or in writing and are subject to the items detailed below’. Those items included that the plaintiff’s job title was ‘Branch Manager - Roxby Downs and Environs’ and that the ‘terms of employment in this position will be a minimum of two (2) years’. The letter sets out the plaintiff’s salary with effect from 1st April 1998 as $80,000 gross per year, including a Roxby Allowance of $25,000. The letter states that on the plaintiff’s return to Adelaide ‘your Salary will be $55,000 gross per year, in a position yet to be confirmed’. The letter then states: ‘We confirm that the notice of termination of employment as stated in the attached “Terms and Conditions” is by monthly agreement.’ The letter concludes: ‘We would appreciate your acceptance of this position by your signing and returning the “Statement of Main Terms and Conditions” and “Secrecy Agreement”.’ The Main Terms and Conditions contain the following clause:
‘TERMINATION OF SERVICES:
A minimum of one months’ notice of termination of employment must be given by either party and confirmed in writing.’
The plaintiff was at Roxby Downs when he received this letter and attachments. He had been working there for about three weeks. He said that when he received the letter and its attachments he read them and he ‘guessed’ he would have read the termination of services clause in the Main Terms and Conditions. He said that he did not know if he understood that the contract was terminable upon a month’s notice. He said that at the time he received the documents he put them in his drawer at his office at Roxby Downs. In April 1998 Mr MacDougall spoke to him about the documents. He retrieved them from his drawer, signed them on 9 April 1998 and returned them to AMEC’s Adelaide office. He signed a Secrecy Agreement and signed at the foot of the Main Terms and Conditions below the words: ‘I hereby accept the Main Terms and Conditions of Employment as set out herein and place my signature accordingly’.
The plaintiff contends that the documents signed by the plaintiff on 9 April 1998 are to be construed as only confirming those terms which had been orally agreed between the parties on 19 December 1997. They should be construed as incorporating only such terms and conditions of employment as do not conflict with the express terms of the oral agreement. It is not disputed that the plaintiff and Mr MacDougall did not discuss or agree any terms regarding the termination of the contract of employment by either party. However, the plaintiff conceded at trial that there could properly be inferred as a term of his contract of employment that AMEC could lawfully terminate his contract for misconduct, neglect, incompetence or unsatisfactory performance. That concession was correctly made because such an implied term is one of the incidents of mutuality in contracts of employment.
AMEC contends that the documents signed by the plaintiff evidence the terms of the plaintiff’s contract of employment. AMEC did not identify at the trial what the oral terms were which it pleaded in its Defence. It submitted that it could terminate the plaintiff’s contract of employment for any reason or for no reason provided that it gave the plaintiff a month’s notice of such termination. It relied on the writing comprising Exhibit P2, and in particular the termination of services clause.
I find that at his meeting with the plaintiff in December 1997 Mr MacDougall told the plaintiff that he would set out the agreed terms in a letter to be sent to the plaintiff after he had commenced working for AMEC at Roxby Downs. His letter and enclosures were intended by him to embody the terms of the agreement made with the plaintiff at the December meeting. I find that the plaintiff so understood the documents he signed on 9 April 1998.
These findings are made notwithstanding that in the letter of 2 February 1998 it is stated that the Main Terms and Conditions supersede all previous conditions and amendments whether oral or in writing. The letter states that the Main Terms and Conditions are to be subject to the items detailed in the letter. The letter refers to the Roxby Downs position which is said to be for a minimum of two years. A salary at Roxby Downs is referred to. Then a salary upon the plaintiff’s return to Adelaide in a position to be confirmed is referred to. The letter then refers to a notice of termination of employment in the attached Main Terms and Conditions. It is said to be ‘by monthly agreement’. It is not clear what was meant by that because the termination of services clause in the Main Terms and Conditions does not refer to any agreement. It states that ‘a minimum of one months’ notice of termination of employment must be given by either party and confirmed in writing’.
In my judgment the contract should be construed in a way which is consistent with the understanding of the contracting parties when it was negotiated. At the time it was both sent and signed, the plaintiff was performing the contract. He had negotiated and accepted it on the basis that AMEC required a firm commitment by him for at least two years at Roxby Downs. That commitment required that the plaintiff relocate himself and his family from Mount Gambier to Roxby Downs. It also required him to sell his home, cease using his service company through which he performed work for many years and abandon a growing bed and breakfast business. If I am able to construe the written document in a way consistent with the understanding of the parties to it, I should so construe it. Any ambiguity in the document should be resolved in a way which is consistent with the understanding of the parties.

I find that the contract of employment between the plaintiff and AMEC provided that the plaintiff would be AMEC’s Branch Manager - Roxby Downs and Environs for a two year period from 1 January 1998. He would become an employee of AMEC from 1 April 1998.
His salary for that two year period would be $80,000 gross per year which sum included a Roxby Allowance of $25,000. Married accommodation including all utilities would be supplied by AMEC. A company utility would be provided.
During the two year period from 1 January 1998 such of the Main Terms and Conditions which were consistent with the position of Branch Manager Roxby Downs and Environs, and which were not inconsistent with the agreement reached in December 1997, would apply.
Following the two year period the plaintiff was to be employed in a position to be confirmed in Adelaide. His salary would then be $55,000 gross per year and all the Main Terms and Conditions would apply.
That construction is not only consistent with the understanding of both parties to the contract but is also consistent with the statement in the letter dated 2 February 1998 that the Main Terms and Conditions were subject to the items detailed in the letter. One of those items was that the position at Roxby Downs would be for two years. The only reference to termination in the letter of 2 February 1998 is a purported confirmation ‘that the notice of termination of employment as stated in the (Main Terms and Conditions) is by monthly agreement’. That is a meaningless expression and I have no regard to it in construing the contract of employment.
Accordingly, I find that the plaintiff’s contract of employment with AMEC was for a fixed term of two years as its Roxby Downs Branch Manager. The contract for that period in that position did not contain a clause allowing AMEC to terminate the plaintiff’s employment on one month’s notice. During that period AMEC could only terminate the plaintiff’s contract of employment for the plaintiff’s misconduct, neglect, incompetence or unsatisfactory performance. Such a term should be implied in the plaintiff’s contract of employment. I further consider that if any of those circumstances arose whereby AMEC could justifiably terminate the contract, the extent of proper notice of such termination to the plaintiff, if any, would depend upon the circumstances of such termination.
The plaintiff submitted at trial that there should be implied a further term into his contract of employment. That term was that the plaintiff would be accorded fair treatment in respect of any termination.
I am satisfied in the circumstances that such a term should be implied into his contract of employment. The circumstances which existed at the time the contract was negotiated and concluded and AMEC’s conduct leading up to the termination were such as to justify implying a term that the plaintiff would be accorded fair treatment in respect of any termination. I refer to the circumstances preceding termination later in these reasons.

Whether termination wrongful

I now consider whether there were in existence on 14 July 1998 circumstances which justified termination of the plaintiff’s contract of employment by AMEC. That is whether the plaintiff was, at that date and in the circumstances, guilty of any misconduct, neglect, incompetence or unsatisfactory performance which would justify his dismissal.
As already indicated the plaintiff had a general idea of some of the issues which might confront him when he went to Roxby Downs on Tuesday 13 January 1998. He had been briefed by Mr MacDougall and others in the days before he went to Roxby Downs. He knew there were some difficulties with the Alliance contract and that some of AMEC’s staff were not happy that they had ceased to be sub-contractors. I find that he was also briefed that there was a need for the new branch manager to devise and implement management systems to better control and track AMEC’s work for Western Mining and the charging for that work. However, I am satisfied that the briefing the plaintiff received about these matters was quite inadequate to prepare him for what he found at Roxby Downs when he arrived there. That was true in respect of each of the issues just referred to. Each of these three issues were the subject of the letter Mr MacDougall faxed to the plaintiff at Roxby Downs on Friday 26 June 1998. In that letter the plaintiff was advised that a review of his employment status might take place if he could not achieve substantial improvements in the following two weeks. The plaintiff’s briefing was quite inadequate because I am satisfied that AMEC’s Adelaide management were themselves unaware of the extent of the problems with which the plaintiff was to be confronted at Roxby Downs.
On the day after his arrival at Roxby Downs the plaintiff met with AMEC’s employees. There was a workforce of about fifteen. He was surprised and shocked by the intensity of ill-feeling by the workforce towards the company. Their anger and resentment was directed towards him as he represented the company’s management. The workforce had been told that a number of their grievances would be sorted out in the months that preceded January 1998. They complained that these had not been resolved. These complaints included a perceived loss in wages and status by virtue of their ceasing to be subcontractors. There were also some work practices that they valued as sub-contractors and which they were anxious to retain. The plaintiff later learnt that some of these practices included the consumption of alcohol during the working day and a practice by some workers of charging Western Mining for hours which were not worked.
The plaintiff set about trying to change these undesirable work practices. As a result, over the months that followed some employees of AMEC developed resentment toward him. These employees took the opportunity to complain about the plaintiff’s style to executives from AMEC’s Adelaide office when those executives visited the Roxby Downs site. Mr MacDougall and Mr Crooks both told me about complaints that were made to them by disgruntled employees of AMEC. They also told me about complaints that were made to them by a member of the office staff at the Roxby Downs office. Mr MacDougall and Mr Crooks did accept that some staff of AMEC at Roxby Downs were not always easy to get on with or were not particularly effective in their jobs. Neither Mr MacDougall nor Mr Crooks told me that they had discussed these issues with the plaintiff before 26 June 1998. Mr MacDougall said he had observed the plaintiff’s relationship with staff for whom he was responsible at Mount Gambier and thought it was an appropriate one.
An example of the type of complaint made to Mr MacDougall was that he was told by one of the tradesmen employed by AMEC that the plaintiff would not listen to him when he made suggestions. Mr MacDougall accepted that such a complaint can often mean that an employee is really complaining that the manager won’t do it his way. Mr MacDougall said that there seemed to him to be an impression in the minds of some of AMEC’s employees that the plaintiff was unwilling to listen to them and to deal with them in a manner with which they felt comfortable. He agreed that a company would be extremely lucky if its employees never thought that of management.
Mr MacDougall said that he expected the plaintiff to stop AMEC’s employees drinking on the job and from completing inaccurate time sheets. He acknowledged in his evidence that the plaintiff had complained to him from time to time about the abilities of the senior staff with which he was expected to manage the branch at Roxby Downs.
Whilst AMEC might have expected the plaintiff to solve the problems that it had caused in respect of its workforce at Roxby Downs, I am satisfied it gave him little authority to do so. This was particularly so in respect of their complaints about their wages. Mr MacDougall visited Roxby Downs on 26 February 1998 to attend a meeting with the carpenters. He successfully resolved their complaints about their remuneration, however he had authority to negotiate rates of remuneration. The plaintiff had no such authority. Whilst conceding that the plaintiff had no authority to accede to wage claims by the workforce Mr MacDougall said his expectation was that the plaintiff might have solved those problems before he, Mr MacDougall, went to Roxby Downs on 26 February 1998. I found that evidence naive and unconvincing. It indicates a lack of knowledge and understanding about the depth of anger and resentment I find existed when the plaintiff arrived at Roxby Downs. It also demonstrates a lack of appreciation of industrial relations.
The hearsay evidence of Mr MacDougall and Mr Crooks was that some members of AMEC’s staff at Roxby Downs did not like the plaintiff’s management style. Some obviously resented the plaintiff’s attempts to get rid of unsatisfactory work practices. AMEC blamed the plaintiff entirely for its unhappy workforce at Roxby Downs. I find that it was unreasonable to do so. I find that the situation at Roxby Downs, insofar as the AMEC workforce was concerned, was largely of AMEC’s own making. It was unreasonable of AMEC to expect the new Branch Manager to implement a new and unpopular regime and to blame him when members of the staff complained to senior executives about the management style of the new manager. I find that the plaintiff sought to impose on the AMEC workforce the policies of the company. The manner in which he did so was not the conduct of an unreasonable branch manager, considering the circumstances that confronted the plaintiff at Roxby Downs in the first half of 1998. I find that nothing the plaintiff did in respect of the AMEC workforce at Roxby Downs constituted misconduct, neglect, incompetence or unsatisfactory performance by him. I find that the plaintiff acted as any reasonable branch manager would have in the circumstances.
Much evidence was given during the trial about problems that AMEC experienced in the management systems which were in place for Western Mining to order work to be done, for AMEC to do that work and to invoice Western Mining appropriately, and for payments to be made to AMEC by Western Mining. Even before the plaintiff arrived at Roxby Downs, Western Mining were concerned that they had been charged for a considerable amount of work which had not been performed. Also, before the plaintiff went to Roxby Downs, AMEC expected that a new software program would be written in order to cope with the management systems necessary for the Roxby Downs operation. Importantly, such a program had to be compatible with the program being used by Western Mining. Another problem facing the plaintiff when he arrived at Roxby Downs was that no one on the staff of AMEC or Western Mining fully understood the program that was being used by Western Mining. AMEC’s proposed software program was not written during the plaintiff’s time at Roxby Downs. As a result he devised and put in place a labor intensive manual system. Another problem faced by AMEC (for which the plaintiff was later to be criticised) was that once a job was invoiced AMEC’s policy was that the invoices be sent by the branch to its Adelaide office. It was the Adelaide office’s responsibility to collect payment on the invoice. The Roxby Downs Branch Manager would not necessarily know whether or not a particular invoice had been paid. Mr Crooks said that in the week following his arrival at Roxby Downs on 29 June 1998 he was able to collect a considerable amount of money on unpaid invoices. He suggested that that should have been the responsibility of the plaintiff. I find that his criticism was unjustified.
I find that the criticisms of the plaintiff as to the problems within the administration of the branch office were unjustified. Criticisms made at trial about his reporting to the Adelaide office were also unjustified. I accept the plaintiff’s evidence that Mr MacDougall did not inform him of any shortcomings in the content or format of his monthly reports.
An officer from the Adelaide office of AMEC visited Roxby Downs on 12 and 13 May 1998. The purpose of his visit was to ‘identify any areas of administration that could be improved upon and investigate specific problems encountered in Adelaide in certain area, whilst ensure that the branch was complying with company procedures’.
The officer reported on his investigations in a detailed five page report (‘the Bishop report’). The report was critical of Western Mining’s internal systems. It dealt in detail with a variety of specific problems such as creditor’s invoices, timesheets, MOR’s and payment. It covered the software system implemented by Western Mining known as SAPS, charging for freight and software proposed by AMEC. On that last topic the report indicated that a deadline of 1 July 1998 was set to have the software up and running. As to payment on invoices the report stated that ‘we should address the payment problems at management level. It is impossible for us to chase payment when the client says we can’t get paid, can’t tell us why and can’t tell us who can fix it. We should perhaps tread lightly on the current outstanding payments as it appears a lot of it is self inflicted due to the backlog of paperwork inherited’.
The Bishop report concluded:
‘It is evident that Ray Shanks has had an uphill battle since taking over as branch manager. Understandably his energies have been channelled into winning back favour with our employees and the client, and to clear the backlog of paperwork he inherited.
It is my opinion that this style of business is not one AMEC are familiar with, and as such, can’t draw on previous experiences to determine exactly how the branch has to be set up. (I have taken on board that not everyone is of the same opinion as me in this area). As such, the branch’s systems seem to have evolved rather than being planned from the start.
The main contributing factor to the lack of definite planning of administration practices is the SAPS software system employed by WMC. It seems that WMC personnel are unsure of how the system works and a lot of the onus of running the system is put back on to the contractor.’
The plaintiff said in evidence that he agreed with the contents of the Bishop report. He added that Mr MacDougall told him that he thought it was an excellent report. I find that Mr MacDougall did so inform the plaintiff.
It is significant that in Mr Crooks’ report dated 5 July 1998 by which he purported to report on a review which he said was conducted over the three weeks prior to that date, he made no mention of the Bishop report. He did, however, make detailed criticisms of the plaintiff regarding the management systems operating at the Roxby Downs branch. When shown the Bishop report during his evidence Mr Crooks said that he had not seen it before.
I find that Mr MacDougall had the Bishop report by the end of May 1998. He instructed Mr Crooks on about 15 June 1998 to conduct a review of the Roxby Downs branch. There is no explanation why Mr MacDougall did not give Mr Crooks a copy of the Bishop report. There is also no explanation why Mr Crooks did not discover that the Bishop report existed during his review of the branch. The first two weeks of that review was conducted whilst Mr Crooks was in Adelaide.
I am satisfied that nothing the plaintiff did in respect of the management systems applying at Roxby Downs during his time there as Branch Manager, or his reporting to the Adelaide office, constituted misconduct, neglect, incompetence or unsatisfactory performance by him. I find that the plaintiff acted as any reasonable branch manager would have in the circumstances.
As indicated earlier in these reasons, by late 1997 AMEC had negotiated to provide building maintenance services to Western Mining pursuant to the Alliance contract. That contract had been signed by AMEC but not by Western Mining. AMEC considered that it had a binding contract with Western Mining. The plaintiff was briefed in January 1998 that the services that AMEC would provide to Western Mining, through him as Branch Manager of AMEC’s Roxby Downs office, would be pursuant to the Alliance contract. That contract provided, at least for the services that were contemplated to be performed for Western Mining by AMEC in the first half of 1998, that AMEC would charge for its services at an hourly rate plus materials. That is, a maintenance job would be requested by Western Mining, the plaintiff and his office staff would arrange the appropriate trades to perform the job using such materials as were necessary, and AMEC would charge Western Mining for the number of hours worked by the various trades and for materials.
Soon after the plaintiff arrived in Roxby Downs he was confronted with two senior executives, responsible for the administration of the Alliance contract, who had different views as to how AMEC should provide maintenance services to Western Mining. Early in March 1998 the plaintiff met with senior executives of Western Mining at Roxby Downs. Mr Biss for Western Mining told the plaintiff that he required AMEC to do maintenance work for fixed lump sum prices. He required AMEC to quote for such jobs and to prepare ‘scopes of work’ for other maintenance work to be performed by AMEC. He required AMEC to prepare quotes and scopes of work at no cost to Western Mining. The plaintiff considered this to be inconsistent with the Alliance contract. Mr Biss said that in his view that there was no such contract.
The plaintiff discussed these issues with Mr MacDougall and was told by Mr MacDougall that he could give fixed price quotes to Western Mining but that he should charge for the preparation of the quote. The plaintiff passed this on to Mr Biss who did not accept it. Mr MacDougall then spoke and wrote to Mr Biss indicating that AMEC would perform work for Western Mining only on the basis of the Alliance contract which provided for hourly charge out rates.
Mr Biss did not accept this. He asked the plaintiff to do a scope of work for some part of Western Mining’s operation at Roxby Downs and indicated to the plaintiff that once the scope of work had been prepared it would be put to tender by Western Mining. The plaintiff said that he would not do so without charging for preparing the scope of work. Mr Biss said to the plaintiff that he would take AMEC off his tender list. As the Alliance contract gave AMEC exclusive rights to provide maintenance services to Western Mining at Roxby Downs this was clearly inconsistent with the contract. The plaintiff reported this to Mr MacDougall. Mr MacDougall put AMEC’s position on the contract to senior executives at Western Mining. That position was that the contract would be adhered to and work would be performed at hourly rates. Scopes of work would be prepared but would be charged for. I find that Mr MacDougall instructed the plaintiff to continue to do business with Western Mining on that basis. He instructed the plaintiff to resist the view that was being put by Mr Biss.
On 3 June 1998, the plaintiff received an E-mail from a person in charge of one of Western Mining’s centres at Roxby Downs. She said she required a scope of work to be produced so that it could be sent out to tender. She said that Mr Biss had informed her that AMEC would write the scope of work free of charge. The plaintiff advised her that this was not the case but that if she raised a maintenance order to cover the time to write a scope of work AMEC would be happy to assist. On 4 June 1998 the plaintiff received a telephone call from Mr Biss advising him that AMEC would not be invited to tender for the work because AMEC were not interested in writing the scope of work free of charge. On 9 June 1998 the plaintiff wrote to the Western Mining Site Service Engineer, Mr Geoff Marks. He advised Mr Marks of the events just described. He wrote:
‘This compromises my position and makes for an uncomfortable environment to provide a quality service in a professional manner. Mr Biss has on a number of occasions telephoned me in an attempt to bully and intimidate me to comply with his personnel demands which are in breach of AMEC policy. I consider this harassment unacceptable. Please accept this letter as an official complaint...’

I find that as a direct result of that letter senior executives of Western Mining sought to meet senior executives of AMEC in Adelaide. That meeting took place in the Adelaide offices of Western Mining on 19 June 1998. Mr MacDougall and AMEC’s Commercial Manager in Adelaide, Mr Garry Wise, were present on behalf of AMEC. Mr Biss represented Western Mining and for the first time at any meeting between Mr MacDougall and Mr Biss Western Mining’s legal counsel attended. Mr MacDougall was asked at the trial whether there was any discussion at this meeting about the performance of the plaintiff. He replied that there was indirect discussion. He was asked to elaborate. He said: ‘I was advised that for the contract to move forward AMEC would need to review how it was operating its management system on site.’
After the meeting Mr MacDougall and Mr Wise agreed that the message being given was that it looked like AMEC had ‘a problem with Mr Shanks in the relationship’ at Roxby Downs. Mr MacDougall was then asked:
Q...... As a result of that did you do anything.
AYes.
Q...... What did you do.
AI went back and discussed the branch with a senior executive and started having a look at options that they had.
Q...... What options did you consider.
AI looked for another position inside the organisation that we may be able to transfer Mr Shanks into.
Q...... Were you able to identify any position.
ANo.
Q...... Did you make arrangements for any further investigations to be conducted about what was happening at Roxby.
AYes. I instructed one of the other employees that was working with me at the time to go up and have a look and to give me some feedback.
Q...... Who was that.
AMr Chris Crooks.
Q...... Did he do that.
AHe did.
Q...... Can you recall when he went up there for that purpose.
ANo I can’t recall a date, he did a number of trips up there but I can’t recall which trip that was.
Q...... Did he report back to you after you had asked him to check things out at Roxby.
AYes he did.
Q...... What did he report.
AThat he himself was not very happy with what he had found, that there were some serious issues at hand.
Q...... Did he identify what those issues were.
AIn general terms that there was very little cooperation between Mr Shanks and the employees and there was a number of issues with client related staff interacting with AMEC on the site.
Q...... Did he tell you anything about either of those issues in more detail than that.
AHe did a report on his findings.
....
QLooking at the document now produced to you, do you recognise that.
A...... Yes.
QIs that the report from Mr Crooks to which you were referring.
A...... Yes
This report, dated 5 July 1998, was tendered.
Mr MacDougall was cross-examined about his meeting with Mr Biss and Western Mining’s legal counsel and the message that he took away from it. The following exchange occurred:
QIn any event you and Mr Wise formed the view that there might be some risk to the alliance contract if Mr Shanks stayed.
AWe were concerned that Western Mining had intimated that they were extremely unhappy in the current situation.
QIsn’t it the fact that you and Mr Wise concluded that there was a risk to the alliance contract if Mr Shanks stayed as branch manager at Roxby Downs.
AWe were concerned that we could - that it would be difficult to see a way forward while the relationships on-site were the way they currently were.
QIn plain language you saw a risk to the alliance contract didn’t you.
AIf we couldn’t get an acceptance of a relationship between the people on-site back onto a working relationship it was going to be difficult to move forward.
QYesterday you said that after the meeting, and I’ll paraphrase you, you confirmed that Wise got the same message as you, namely that it looked like there was a problem with Shanks at Roxby. And then you discussed the branch with a senior executive and looked at options.
ACorrect.
QWho was the senior executive?
AMr Wildman.
QYou immediately set about looking for another position to transfer the plaintiff to. Isn’t that right.
AYes.
QIsn’t that consistent with you and others, Wise and Wildman, having decided that since there appeared to be some risk to the alliance contract if Shanks remained in that position, that you would first of all try to move him. Isn’t that right.
ANo.
QWhy then did you immediately set about seeking another position to transfer him to.
ABy this stage we had seen that as another issue that was coming from the site in relation to Mr Shanks. We had concerns already and they were reinforced at that meeting. And having them reinforced it was apparent that we had to address the issue.
QSo the first thing you did was see if you could find a slot to put Mr Shanks into away from Roxby Downs.
AThat’s correct.
QYou couldn’t find one.
ACorrect.
QSo I suggest you then decided that the best thing to do was to terminate his employment.
AWe looked at a number of options. We looked at relocation and we looked at having the relationships brought to the surface and acknowledged and to see if there was a way forward.
HIS HONOUR
QWhat did you do about that one.
AThat was the fax that was sent on the 26th, was to get Mr Shanks to acknowledge in his mind that there were serious concerns that people were concerned about his performance and they needed to be addressed fairly quickly.
QDid you send a letter to Mr Biss suggesting he could perhaps have a change of view and heart.
AAt the meeting we had with Mr Biss and Mr Blewett we explored what needed to be done from both parties to go forward as far as the contract - so from that meeting we understood that Mr Biss and Mr Blewett were going away to look at those issues.
...
XXN
QJust going on from there, one of the matters that they were serious about was its interpretation was it not.
AYes.
QAlso whether it needed to be rewritten or amended in some form so as to suit the needs of Western Mining as they were at that time perceived.
AYes there were a number of clauses that Western Mining would have liked to have looked at change and there were particular contract clauses that AMEC would have liked to address in that same negotiation.
In the first part of this evidence I consider that Mr MacDougall was hedging with the cross-examiner. I consider that he was not being frank in his answers. The Alliance contract and its continuation was Mr MacDougall’s responsibility. He had been brought from Melbourne to oversee that contract. I am satisfied that he understood Mr Biss’ message to be that the continuation of the Alliance contract was at risk if he did not get rid of the plaintiff from Roxby Downs.
I find that immediately following the meeting on 19 June 1998 Mr MacDougall determined that the plaintiff would be removed as Branch Manager of AMEC’s Roxby Downs branch. I accept that Mr MacDougall looked for another possible position for the plaintiff in Adelaide but I am satisfied that he made a rather cursory effort. My finding that it was then decided to remove the plaintiff as Branch Manager of the Roxby Downs branch is consistent with what I find Mr MacDougall said to the plaintiff on 14 July 1998 when Mr MacDougall terminated his employment. When the plaintiff asked Mr MacDougall: ‘Isn’t that rather severe’, Mr MacDougall replied: ‘Well when you send personal letters’. The letter to which he was referring was the letter the plaintiff wrote to Mr Geoff Marks dated 9 June 1998. I find that Mr Biss took great exception to that letter when he received it and he consequently sought the meeting with Mr MacDougall and Mr Wise at which he gave the clear (albeit disguised) message that the plaintiff could not remain at Roxby Downs. Mr Biss’s lever was the Alliance contract. At the trial I was told nothing about any negotiations between AMEC and Western Mining concerning the Alliance contract which occurred between the meeting on 19 June 1998 and the date of the plaintiff’s termination.
On Friday 26 June 1998 Mr MacDougall telephoned the plaintiff at Roxby Downs and asked him to stand next to the facsimile machine. The plaintiff did so and received the following message from Mr MacDougall:
‘Subject:
Performance Review
Message
Further to our discussion earlier today over your performance in relation to our operations at the Roxby Downs Branch, see below the concerns AMEC have for areas of the business which have not improved despite numerous reviews;
......... inability to allay client concerns over on-site relationships, where there remains a perception of a lack of effective interaction and ability to integrate with their requirements
.inability to demonstrate clear and effective guidance to build trades into an effective team with resultant reputation loss in provision of day to day service response
......... inability to meet self imposed timelines on administration reports and lack of cost control reporting required to accurately inform management of the financial status of the branch.
In view of the above it now becomes necessary to inform you that if you cannot achieve substantial improvements in these areas over the next two weeks a review of your employment status will take place which may result in the termination of your employment.
During this period you will be required to liaise with, and report to, Mr Chris Crooks, who will spend as much time on site as is practicable, to assist you in identifying specific areas which need urgent attention. All issues relating to overhead expenditure, operational strategies and system changes will require approval by Mr Chris Crooks prior to implementation.
Regards
Hugh MacDougall
Manager - Maintenance & Shutdowns’
When the plaintiff received that facsimile he was devastated. That night he telephoned Mr Don Cook in Adelaide who was the Personnel Manager of AMEC. He also telephoned Mr Garry Wise, the Commercial Manager of AMEC. Mr Wise told him that he knew of nothing that could have moved Mr MacDougall to write in that way to him. Mr Wise was not called at the trial and I find that the plaintiff did telephone him and that Mr Wise responded as the plaintiff described. The plaintiff also telephoned Mr MacDougall to try and make sense of what had been written to him. Mr MacDougall said that management was not happy with his performance. That was the extent of the elucidation the plaintiff received, although I accept that that conversation was somewhat strained. However strained it may have been, I find that the plaintiff was not given any more information by Mr MacDougall than that which was contained in his facsimile.
The facsimile was sent by Mr MacDougall from AMEC’s offices in Western Australia. At the same time Mr MacDougall sent a facsimile transmission to Mr Crooks. Mr Crooks was a mechanical engineer and project engineer for AMEC. Mr Crooks was advised by Mr MacDougall of the text of the letter to the plaintiff and was informed that he would ‘be required to undertake a monitoring, advisory and decision making role (in accordance with AMEC policy and procedures to your level of authority) in assisting (the plaintiff) to achieve the necessary improvements required to allow the branch to function to management expectations’.
Mr Crooks had previously spent two days at Roxby Downs, on 11 and 12 June 1998. He went there specifically to prepare a maintenance plan for Western Mining. The preparation of such plan had been arranged between senior executives of the two companies on terms negotiated between those executives. On those two days Mr Crooks did not discuss anything about AMEC’s operations with Mr Shanks but he was spoken to by a number of employees who complained about the plaintiff’s management style. He said that he observed AMEC’s management systems at Roxby Downs were in a dreadful mess.
The next time Mr Crooks went to Roxby Downs was after he received the direction to go on 26 June 1998. He arrived at Roxby Downs on 29 June 1998. Mr Crooks said that he was orally briefed by Mr MacDougall that he was to go to Roxby Downs to assist the plaintiff in developing any systems the plaintiff wanted to develop and to give the plaintiff any assistance the plaintiff requested of him. He was asked:
Q...... Did you express to him, not necessarily in any precise words, but did you express to him your shock at the letter that had been sent to him.
ANot of my shock, no, I don’t think that’s a very good description. I was surprised that things had deteriorated to the state that they had, that I had to go there on short notice and at some severe personal inconvenience to assist him in setting up systems.
Q...... Did you say to him words to the effect that you had no idea why he should be sent a letter like that.
APrior to me getting this letter I had no idea because I hadn’t had very much to do with the Roxby branch. (my emphasis)
Q...... I didn’t put the question clearly enough; did you say to Mr Shanks, when you met him in Roxby on 29 June, that you had no idea why Mr Shanks had been sent a letter in the terms set out in the document in front of you.
ANo, because if I read the document it becomes crystal clear why he received it. All the reasons for him having received it are in the letter so, no, not surprised.
Q...... And you didn’t say to him that you had no idea why the letter should be sent to him.
ANo, I did not.
Q...... You were in Roxby Downs all of that week.
AYes.
Q...... In the course of that week were you able to offer Mr Shanks any assistance.
AMy brief was to offer him assistance as requested by Mr Shanks. I did not receive any requests for assistance from Mr Shanks.
HIS HONOUR
QWhere did you get that brief; from the letter that you got from Mr MacDougall or -
A...... From the letter.
Q- orally.
A...... From the letter and also verbally from Mr MacDougall.
QJust point out to me where in the letter it says that you were to assist Mr Shanks to develop any systems he wanted to develop to fix the problem.
A...... ‘During this period you will be required to liaise with Mr Crooks, who will spend as much time on site as practicable to assist you in identifying specific areas which need urgent attention.’ Now that’s the paragraph in particular.
XN
Q...... Do you recall when you arrived Mr Shanks saying to you words to this effect, ‘ You’re in charge, what do you want me to do?’ - addressing you, saying ‘You’re in charge, what do you want me to do?’.
AI don’t recall that statement specifically, but he may well have said that.
Q...... Did you say to him ‘Just carry on doing what you’re doing’.
AI don’t recall that conversation.
Mr Crooks returned to Adelaide on about Friday 3 July 1998 but returned to Roxby Downs on either the following Monday or Tuesday. He remained there for a further three days.
Although it is clear in Mr MacDougall’s letter to the plaintiff that Mr Crooks would spend as much time on site as was practicable to assist him in identifying specific areas which needed urgent attention, I find that Mr Crooks proffered no such assistance to the plaintiff. Mr Crooks said he thought he was there to help in what ever way the plaintiff asked him. The plaintiff did not ask him therefore he gave no help. What Mr Crooks did do, however, was to speak to Western Mining and AMEC personnel in order that he might report to the general manager of AMEC about the operations of the Roxby Downs branch. He prepared a written report on his review of the Roxby Downs branch on Sunday 5 July 1998 before he returned the next week. In that report he indicated that he had conducted the review on which he was reporting over the previous three weeks. He said that Mr MacDougall had instructed him to conduct that review. Those instructions would have been given no later than about 15 June 1998. They were given before the facsimile transmission to the plaintiff dated 26 June 1998 and before Mr MacDougall met with Mr Biss at the offices of Western Mining. Instructions were probably given in response to reports Mr MacDougall obtained from Mr Crooks after the two days Mr Crooks spent at Roxby Downs on 11 and 12 June 1998.
What Mr Crooks did regarding his review of the Roxby Downs branch in the two weeks from 15 June 1998 to 26 June 1998 is difficult to say. His evidence was that prior to getting his letter from Mr MacDougall dated 26 June 1988 he had no idea why the plaintiff would be sent the letter he was because he had not had very much to do with the Roxby Downs branch prior to him getting his letter. As already indicated he was not given, nor did he discover the existence of, the Bishop report dated 20 May 1998. He did not go to Roxby Downs between 12 June 1998 and 29 June 1998.
I find that when Mr Crooks arrived at Roxby Downs he found the plaintiff in a state of despair. The plaintiff said to Mr Crooks words to the effect that he considered that the letter he had received from Mr MacDougall effectively indicated that his employment would be terminated. I find that the plaintiff said to Mr Crooks words to the effect: ‘You’re in charge, what do you want me to do?’ I find that Mr Crooks replied: ‘Just carry on doing what you are doing’. I accept the plaintiff’s evidence as to these matters.
I am prepared to take what I consider to be a somewhat charitable view of Mr Crooks’ evidence as to what he considered his brief to be when he went to Roxby Downs. I consider that his description of his brief was inconsistent with any reasonable interpretation of the words written in the letters to the plaintiff and to Mr Crooks. Mr MacDougall must have told Mr Crooks, directly or indirectly, that he shouldn’t do anything to assist the plaintiff.
I find that in the circumstances the plaintiff reasonably interpreted the letter from Mr MacDougall to him as indicating his services at Roxby Downs would be terminated. The letter required that the plaintiff effect substantial improvements in two weeks in areas which involved relationships between AMEC and Western Mining, some of which were, to Mr MacDougall’s knowledge, beyond salvaging. The plaintiff was informed that all issues relating to overhead expenditure, operational strategies and system changes required approval by Mr Crooks prior to implementation. This statement, and the fact that Mr Crooks offered the plaintiff no assistance, must have underlined to the plaintiff that his services would be terminated.
Furthermore, if Mr MacDougall really wanted to get the message to the plaintiff that there were concerns about his performance and those concerns needed to be addressed fairly quickly, the words he used in the three dot points in the facsimile to the plaintiff of 26 June 1998 were a very vague and indirect way of giving that message. I accept the plaintiff’s evidence that no executive of AMEC had ever directly raised with him the matters referred to in those three dot points. Mr MacDougall agreed that he could not produce any document in which the plaintiff’s performance had been reviewed in any way, let alone on the topics referred to by those three dot points. I find that there were no reviews made known to the plaintiff, let alone numerous ones, as was asserted by Mr MacDougall in his facsimile to the plaintiff dated 26 June 1998.
Before going to Roxby Downs on 14 July 1998 Mr MacDougall spoke with the general manager and received authorisation from him to do whatever he considered necessary. Neither Mr MacDougall nor Mr Crooks could recall any discussion with each other between 29 June 1998 and 14 July 1998. Mr MacDougall went to Roxby Downs and met with the plaintiff. He told the plaintiff he would have to terminate his employment. He said that he terminated the plaintiff’s employment because the plaintiff gave him no information that showed him that there was a commitment by the plaintiff to fix the problems. He said he got little response out of the plaintiff to demonstrate that anything was taking place. He gave the plaintiff one month’s notice.

The next day Mr MacDougall sent the plaintiff a facsimile stating:
‘Further to our meeting on 14 July 1998 in the Roxby Downs office and the subsequent termination of your employment please be informed that you are not required to work out your notice period. You are required to vacate the Roxby Downs office by 12 noon on 15 July 1998 …’
I find that the plaintiff’s termination of employment was not confirmed in writing as contemplated by the Main Terms and Conditions. Whilst Mr MacDougall’s facsimile transmission of 15 July 1998 referred to the plaintiff’s termination the day before, it was not written to confirm the termination. It was written to inform the plaintiff that he was not required to work out his notice period. Although in its Defence AMEC alleged that ‘it terminated the plaintiff’s contract of employment by one month’s payment of wages in lieu of notice as required by the contract of employment’, the Main Terms and Conditions do not provide for payment in lieu of notice of termination.
I am satisfied and find that nothing the plaintiff did whilst he was the manager of AMEC’s Roxby Downs branch, insofar as his relationship with Western Mining and its personnel was concerned, could be said to constitute misconduct, neglect, incompetence or unsatisfactory performance by the plaintiff or any reasonable branch manager in the position of the plaintiff. The plaintiff’s letter to Mr Biss dated 9 June 1998 might have been expressed differently. The plaintiff accepted in his evidence that in the cold light of day it seems a little severe, but at the time he considered it was appropriate. Mr MacDougall merely said that he was ‘a little disappointed’ with the plaintiff’s correspondence. He thought that ‘from a business sense they were a bit too personal’. The plaintiff maintained AMEC’s position regarding the interpretation and application of the Alliance contract, in accordance with his instructions from Mr MacDougall. He was doing so in the face of enormous pressure from Western Mining. In my view, by asking its branch manager to hold its position against senior executives of its principal client at Roxby Downs, AMEC owed it to the plaintiff to stand behind him when pressure was applied to the company by Western Mining’s senior executives. Rather than doing that, I find that AMEC bowed to that pressure and determined then to remove the plaintiff from the Roxby Downs branch. I find that when Mr MacDougall wrote the facsimile of 26 June 1998 and sent Mr Crooks to Roxby Downs, AMEC had already determined that the plaintiff would not remain at its Roxby Downs branch. I find that the facsimile was written to purport to accord the plaintiff procedural fairness. I find that AMEC did not accord him fair treatment in the termination of his employment.
My conclusion is that as at 14 July 1998 there were no grounds upon which AMEC could properly, lawfully or justifiably terminate the plaintiff’s contract of employment. I am further satisfied that AMEC breached an implied term of that contract to accord the plaintiff fair treatment in respect of any termination of his employment.
For either or both of those reasons I find that the plaintiff’s contract of employment with AMEC was wrongfully terminated.
Had I determined that the conduct of the plaintiff, as referred to in these reasons, was such as to justify termination for misconduct, neglect, incompetence or unsatisfactory performance, I would have found that, in the circumstances, nine month’s notice of such termination would be proper notice.

Damages

Mr MacDougall’s facsimile to the plaintiff dated 15 July 1998 notified the plaintiff that he had use of AMEC’s residence until close of business on 14 August 1998. The plaintiff and his wife left Roxby Downs and went to Adelaide. The plaintiff said that it took him some time to come to terms with what had happened. He registered for unemployment benefits and then started to look for work. He said he looked for work before November 1998. The plaintiff had discovered a considerable volume of material which showed his attempts to find work. The earliest date on this documentation was November 1998. In May 1999 the plaintiff obtained employment which he commenced on 22 June 1999.
At trial the plaintiff submitted a schedule of loss until the end of the plaintiff’s Roxby Downs contract, being the end of 1999. Whilst not conceding any of the schedule, AMEC submitted that the plaintiff should not be compensated for loss of the housing benefit claimed by him on the schedule for the period 15 August 1998 to 31 December 1999. Had his employment not been terminated the plaintiff would have enjoyed the benefit of that housing until the end of 1999. By wrongfully terminating his employment AMEC deprived him of that benefit. For that period the plaintiff had to seek accommodation elsewhere. After his termination he would have had to do that, whether or not he remained in Roxby Downs. I consider that the plaintiff is entitled to be compensated for the loss of the housing allowance.
Another matter argued by AMEC was that some allowance should be made for an alleged failure by the plaintiff to mitigate his loss between August 1998 and November 1998. I am satisfied that I should make no deduction for that reason. I am satisfied that he did make some attempts to put his life in order and to fully prepare himself to search for work. He needed to overcome the emotional effect his termination had on him, to find accommodation, and to prepare his resume. I do not consider I should make any deduction to his damages for a failure to mitigate during the period between August and November 1998.
I am satisfied that I should award him the full amount on the schedule of loss which was presented to me on behalf of the plaintiff.
Accordingly, there will be judgment for the plaintiff in the sum of $54,287.58. I shall hear the parties as to interest and costs.

[2000] SADC 99

31 August 2000