Yaxley v Trust Bank of Tasmania
[1996] IRCA 95
•15 Mar 1996
DECISION NO: 95/96
C A T C H W O R D S
INDUSTRIAL LAW - Termination of Employment - Unlawful Termination - Redundancy
Industrial Relations Act 1988 ss.170DE, 170DF, 170EA
CASES:
Jones v Department of Energy and Minerals (1995) 60 IR 308
Sheppard and Heerey JJ, Bostick Australia Proprietary Limited v Gorgevski (1992) 36 FLR 20 41 IR 452
Johns v Gunn Limited (1995) 60 IR 258
Monsanto Chemicals (Australia) Limited v Amalgamating Engineering Union (Australian section) (1958) 90 CAR 27
Byrne v Australian Airlines Limited (1994) 47 FCR 300
Gregory v Philip Morris (1988) 24 IR 397 to 415
Kenefick v Australian Submarine Corporation Proprietary Limited (1995) 131 ALR 197 at 210
TREVOR YAXLEY -v- TRUST BANK OF TASMANIA
No. TI-1245 of 1995
Before: Judicial Registrar Ryan
Place: Hobart
Date: 15 March 1996
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
TASMANIA DISTRICT REGISTRY
TI-1245 of 1995
B E T W E E N :
TREVOR YAXLEY
Applicant
AND
TRUST BANK OF TASMANIA
Respondent
MINUTES OF ORDERS
Judicial Registrar Ryan 15 March 1996
THE COURT ORDERS:
That the application be dismissed.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
TASMANIA DISTRICT REGISTRY
TI-1245 of 1995
B E T W E E N :
TREVOR YAXLEY
Applicant
AND
TRUST BANK OF TASMANIA
Respondent
Before: Judicial Registrar Ryan
Place: Hobart
Date: 15 March 1996
EX TEMPORE JUDGMENT
The Financial Sector Union of Australia, Tasmanian Branch, the union, lodged a claim of unlawful termination of employment on 30 August 1995. The claim was made on behalf of Trevor Allan Yaxley, the applicant. Mr Yaxley has throughout the proceedings been identified and referred to as the applicant.
The employer, the Trust Bank of Australia, the respondent, filed a notice of appearance on 7 September 1995. The union seeks compensation on behalf of the applicant and asserts that:
the respondent terminated the applicant on the basis of age in clear breach of section 170DF(1)(f) of the Industrial Relations Act 1988, the Act
the termination of the applicant by the respondent, as employer, was harsh, unjust and unreasonable and in breach of section 170DE(2) of the Act.
The respondent contends that there was one reason and one reason only for the termination of the employment of the applicant and that was a valid reason being the operational requirements of the respondent. The respondent asserts, and the union concedes, that the applicant's position of assets maintenance officer (northern region) had been made redundant in the sense that the functions, duties and responsibilities attached to the position were in future to be performed to the extent that they are performed, by the holders of other positions. These are not the words used by counsel for the respondent or counsel for the union and the applicant. They are the words of Ryan J in Jones v Department of Energy and Minerals (1995) 60 IR 308 and those words accurately describe the nature of the redundancy as asserted by the respondent and conceded by the union.
The respondent denies that the termination was in breach of section 170DF(1)(f) or that the age of the applicant was ever a consideration in the decision to terminate the applicant. The respondent denies that the termination of the applicant was, in all the circumstances, harsh, unjust or unreasonable in terms of section 170DE(2) and denies that the union and the applicant have demonstrated that the termination was in all the circumstances harsh, unjust and unreasonable.
The facts are as follows, the applicant
was born on 8 December 1942 and was 52 when his employment was terminated
joined the Launceston Savings Bank on 16 December 1958 and worked for the respondent and its predecessors in law for 36 years 8 months and 3 days
held a wide variety of positions in the Launceston Savings Bank
acted as relieving manager in 18 branches of the Launceston Savings Bank and in some of those branches on several occasions
occupied the relatively senior position of chief clerk in the head office of the Launceston Savings Bank for some years
has specialised in assets management in recent years and during that time developed effective and widely accepted computerised systems of recording, monitoring and replacing assets and an unrivalled knowledge of suppliers and supplier networks
has not worked in the hands-on banking branch environment since at least 1976 and has not been involved since at least that time in the lending or loans area.
In June 1995 the respondent's budget for '95-96 financial year commencing 1 October was being prepared and reviewed. The process revealed that staffing levels in the northern region were 11 positions over budget in May, 13 positions over budget in June, 17 positions over budget in July and about 14 positions over budget when the applicant's employment was terminated on 18 August 1995. The regional general manager, northern region, Mr Gilbert Viney, was on leave when the review revealed the over budget position. On his return to duty he was instructed in the first week of July, to use the words of the respondent's summary of the case filed 8 March 1996:
“...to implement cost-cutting through staff scheduling in the branches and to examine what positions, if any, could be made redundant.”
Mr Viney gave evidence that he thought that about 7 July his region was 11 full-time equivalent positions over budget. The respondent's summary of the case indicates with reasonable accuracy what then followed. Mr Viney and the regional operations manager north, Mr Grant Pryor, examined the operation requirement for the business in the north and the potential opportunities for redundancy. They reported to the Manager, Human Resources, Mr Stuart Clues, that there was a possibility that the position of asset maintenance officer could be made redundant and Mr Viney indicated that he had not located any position for redeployment of the applicant if his position was made redundant.
He gave evidence that:
there were no vacancies in the northern regional office departments of banking operations, human resources, asset maintenance, lending, collections and general secretarial
the applicant had been some 20 years without experience in the branch environment or in any lending field
no directly comparable position into which the applicant could be redeployed existed, that is no directly comparable position within the terms of the Union Bank, Redeployment and Redundancy Agreement, exhibit R5.
The respondent also suggested, primarily through Mr Clues, that given that Mr Yaxley had lived nearly all his life in the northern region and predominantly in Launceston, transfers outside the region were not considered feasible and would be contrary to the Redeployment and Redundancy Agreement. The court pauses to note that it does not agree that such a transfer would be, in all the circumstances, contrary to the agreement. Mr Viney requested Mr Clues to explore whether any other possibility existed as his strong preference was to avoid redundancy if at all possible.
Mr Clues gave evidence of:
his inability to identify any feasible redeployment options
his suggestion to Mr Viney that a position of limited tenure could be created and offered to the applicant as an alternative to redundancy
a meeting he chaired on 26 July 1995 in which, in the presence of Mr Viney, he informed the applicant that the over budget situation had led to the identification of his position of assets maintenance officer as a likely candidate for redundancy together with a similar position in the southern region, and a valuer position also in the southern region
his offer to the applicant at the meeting on 26 July of the alternative position of limited tenure as an alternative to termination at that time
a redundancy statement given to the applicant at the meeting on 26 July, which is exhibit R1, and details a proposed redundancy payment which includes a figure of in excess of 73,500, primarily a redundancy payment equivalent to 90 weeks salary, some leave loading and six weeks in lieu of written notice and also a further sum of 6200 in long service leave and an annual leave component of $2400 (in round figures).
advice to the applicant at the conclusion of the meeting on 26 July that he should consider the redundancy option and the alternative limited tenure position over the next few days and make a response to his employer
the concern expressed by the applicant that the limited tenure option involved training and that he, the applicant, had no experience in that area and could be “set up and shafted”, that is terminated or penalised for incompetency in the limited tenure position
the applicant's request that the details of the alternative position be put to him in writing.
The court notes that in general terms both Mr Viney and the applicant gave similar evidence to Mr Clues in respect to the meeting on 26 July. The applicant indicated that the advice that his position would almost certainly become redundant was a bombshell. The court unhesitatingly accepts his evidence and that of Mr Viney that the applicant was deeply shocked and that no warning of the likely redundancy was given to the applicant until the meeting on 26 July.
Communication with the applicant and negotiations with him were mostly in writing after the meeting of 26 July. Mr Clues confirmed in a letter of 31 July, exhibit R2, that:
(1) the respondent will no longer require the position of asset maintenance officer to be performed in either the northern or southern regions
the respondent was prepared to offer the applicant a redundancy package as provided in writing in exhibit R1 on 26 July
redundancy is not the preferred option and it is believed that the applicant could be effectively redeployed to an alternate position which would entail providing administrative support to the manager, regional banking and the manager, staff development, and be titled Regional and Training Support Officer.
The letter also contained more detail of the key job elements of the proposed position and concluded as follows:
“As discussed, Trust Bank has developed this position as an alternative to redundancy with a view that it is a role you could competently undertake and add value to. It is important to note, however, that the position would only be offered for a fixed period up until your retirement at age 55 years. The precondition of retirement at age 55 years is one that you would need to consider in reaching a decision as to whether to accept the position or to take the redundancy package. In closing, should you require any further information about the options before you do not hesitate to contact either Gilbert Viney, or myself. It would be appreciated if you could provide a formal response by Monday, 8 August or beforehand if possible.”
Mr Clues responded to the applicant's letter of 7 August, exhibit R4, as follows:
“I refer to your letter dated 31 July and advise that I have sought professional legal advice at my own expense as to whether a redundancy would impact adversely on my ex-wife's claim for maintenance listed in the Family Court for the 16th of this month. I have been advised that such a payment is not in my best interest at this time and I would obviously need to continue at the bank until my normal retirement age of 60.
I appreciate that another position has been created which would entail administration support to the manager, regional banking and the manager, staff development. Should I accept this position I request that a full description be provided together with confirmation of my salary, employment conditions and superannuation entitlements. Given that you have requested that I retire at age 55 I would also require you to confirm in writing what redundancy provisions will be applicable to me at the early retirement age of 55.
As you can appreciate I have been employed by the Trust Bank and its predecessors for almost 37 years and I consider that I have been a loyal and conscientious employee who has made a significant contribution to the recent achievements of Trust Bank. Notwithstanding this I now feel that perhaps my time with the bank is drawing to an end. However, I feel that the payment of a redundancy is effectively no real exchange for a loss of 7.4 years salary, superannuation, long service and sick leave benefits due to me until normal retirement age, 60.
I also have another concern with the redundancy option which is outlined in your letter. This involves the taxation implications of a redundancy payment which receives favourable treatment. As you have calculated this payment it would be tax free based on my years of service. I am concerned that you have effectively offered me another position in writing which implies that I am not really redundant in the eyes of the Taxation Department. Obviously, if I was to accept the redundancy payment I would expect confirmation in writing that I have actually been made redundant.
Having regard for the facts as already discussed I would be prepared to accept the redundancy option if it were increased by $20,000 to $93,568.87. I understand that the taxation payment would result in the first $79,420 being received tax free and the balance could be rolled over.
I consider my request to be reasonable and would enable me to leave the bank in favourable circumstances which would be readily accepted by my colleagues, customers and many other business associates.
I await your response in due course and if you need to contact me please telephone on extension number 6472.”
Mr Clues responded to the applicant's letter of 7 August on 9 August, that is exhibit R4 as follows:
“Trust Bank acknowledges your correspondence.
From the outset Trust Bank has never questioned your service and loyalty, in fact these are factors considered in endeavouring to create an alternate position for a fixed period to see you through to retirement.
The redundancy offer put to you is consistent with the Redeployment and Redundancy Agreement negotiated between the Trust Bank and the FSU. The redundancy payment of $73,568.87 is considered to be very equitable and is tax free. Trust Bank is required to observe the Redeployment and Redundancy Agreement and it would be prejudicial to create a precedent whereby the agreement becomes a base from which redundancy payments are negotiated as opposed to an equitable standard of severance payment. Therefore, Trust Bank is unable to offer an additional sum.
The concerns you have raised in relation to the offer of alternative employment prejudicing the tax benefits with the ATO are acknowledged. Should you elect to take the redundancy offer Trust Bank will confirm in writing that you are redundant.
The offer of alternate employment is one that has been specifically designed to provide you with the capacity to work for a fixed period through to age 55. The offer is made on the precondition that you elect to retire at age 55 years. Trust Bank has put this offer as an alternative to redundancy not as an addition. Thus, if you elect to accept the offer and work through to age 55, the contract of employment would be for a fixed period and there will be no redundancy payable at the completion of that contract.
It is unfortunate when positions of employment become redundant and this is even more true when it is occupied by a long-serving employee. Trust Bank has provided you with a choice between a fixed term contract in a specially created position or an equitable redundancy payment. Should you elect to accept the alternate position you would retain your salary level, superannuation benefits and all other conditions of employment for the period of engagement.
In closing, it is trusted that your queries and request have been addressed and should you require any further information do not hesitate to contact the undersigned. A decision as to which option you wish to take would be appreciated by no later that 14 August 1985.”
The applicant wrote two short letters to Mr Clues on 14 August, exhibit R6 and on 15 August, exhibit R7. The last paragraph of the letter of 14 August reads:
“I acknowledge that your letter requires an answer today, however, given that I am unhappy with both options proposed I would appreciate the opportunity of discussing my situation with the regional general manager who is unavailable and in Hobart, as you are probably aware; I would like to defer any decision until I have spoken to him.”
On 15 August he wrote:
“I have now discussed this matter with my regional general manager. I reiterate that I am not happy with either option and I most certainly will not contract out of the award retirement age of 60 and that your requirement that I retire at 55 may well be judged a case of age discrimination in a Court of Law.”
On 17 August Mr Clues wrote:
“In accordance with clause 6B of the Redeployment and Redundancy Agreement 1990 you are hereby formally given notice that your contract of employment is terminated effective close of business 18 August 1995 with appropriate payment in lieu of notice.”
The letter set out benefits and enclosed an updated redundancy statement, exhibit R11, indicating an updated redundancy payment. The same day, 17 August, the applicant wrote to Mr Clues. His letter contained the following statement:
“The Redeployment and Redundancy Agreement clause 4, Redeployment A and B specifies that alternative employment options should be explored and it is my belief that this has not taken place. I would appreciate the opportunity to discuss any redeployment availability before the redundancy takes place.”
The next day, 18 August, Mr Clues wrote again to the applicant, exhibit R10, the letter included the following statements:
“In correspondence dated 17 August Trust Bank provided you with notice in writing of your redundancy and a date of termination being close of business today. Trust Bank has made every effort to explore opportunities of redeployment. Trust Bank is unable to redeploy you to any comparable position beyond that which was rejected by yourself. In light of all the discussions and correspondence to and fro Trust Bank rejects your contention that the option of redeployment has not taken place. In closing, Trust Bank has provided you with formal notification of your date of termination in accordance with the provisions of the Redeployment and Redundancy Agreement 1990 and that date being close of business today shall remain.”
On 15 August, Mr Viney saw the applicant in Launceston. On 14 August Mr Viney was in Hobart and Mr Clues asked him to see the applicant. Mr Clues had already on that day at 12.16 pm received the applicant's letter in which he had indicated that he was unhappy with both options proposed and wanted the opportunity of discussions of his situation with the regional general manager, that is Mr Viney. Mr Viney gave evidence that he cast his eye over the applicant's file when he was in the office of Mr Clues in Hobart on 14 August. In fact, Mr Viney read the correspondence which had passed to that time between the applicant and Mr Clues and he prepared quite detailed preparatory notes, exhibit R12, and he used those notes in his discussion with the applicant on 15 August.
While it was obvious at the hearing from the demeanour of both witnesses that there was little rapport between the applicant and Mr Clues, and that the evidence suggests little warmth in their professional relationship from 26 July to 18 August and communication between them only in writing between 27 July and 18 August, that was not at that time, or now, the position between the applicant and Mr Viney. Both respect each other. Both speak generously of each other in terms of an effective working relationship. Both agree broadly on the nature of their discussion on 15 August.
In my view, both were open and honest witnesses and both were willing to concede, and did concede in evidence, matters which were not entirely supportive of their respective positions. Mr Clues was a little less open or impressive as a witness and was unwilling to concede any issue which might have suggested that the termination process was anything other than fair and reasonable in every sense. Having said that, the court also found Mr Clues a witness of truth albeit a more remote but professional human relations specialist.
The applicant's other two witnesses, Mr Gittis, a friend and former senior colleague, and Mr White, a financial adviser and superannuation and taxation specialist, were of no particular assistance, although the court had no difficulty in accepting the general tenor of their factual evidence. However, the strongly held opinions expressed by both of them, especially Mr White, that the termination of the employment of the applicant was harsh and unreasonable because in their view the applicant should have been provided with a more generous redundancy payment were opinions accorded no weight. The opinions were of no assistance.
Viewed subjectively, it may be difficult to exclude some element of harshness in the termination on grounds of redundancy of a long-serving employee with a very good record of service when such employee indicates that he wants to work on to 60 years of age unless he receives an increase in redundancy payment of the order of 29 per cent. However, the test is one of whether viewed objectively the decision of an employer to dismiss is harsh, unjust, or unreasonable. See Sheppard and Heerey JJ, Bostick Australia Proprietary Limited v Gorgevski (1992) 36 FLR 20 41 IR 452 at 28 and at 459.
Before addressing section 170DE(2) the court must first deal with the union assertion that the respondent terminated the applicant on the basis of age and therefore in breach of section 170DF(1)(f). The court is very conscious of and accepts what Northrop J has set out in Johns v Gunn Limited (1995) 60 IR 258 at 261 and at 266 to 268 in respect to the onus on an employer under section 170EDA when an employee alleges a termination of employment for a reason or reasons which includes a prohibited reason under section 170DF(1). However, I am satisfied on the balance of probabilities that the age of the applicant was not included as a reason of the respondent in terminating the employment of the applicant.
Age was indisputably a factor in the offer of the alternative option of the position of regional and training support officer, but it was probably only a factor in that option because of the respondent's desire to confine any option in lieu of redundancy to a payment of the order of that to be expended on the redundancy. More importantly, the offer of that option was not a reason of the respondent in the termination of the employment of the applicant. The whole rationale for the termination was the fact that the existing position of assets maintenance officer had been made redundant because of the operational requirements of the respondent which requirements were to reduce a budget and staffing overrun particularly in the northern region.
It could be said that the refusal, in my view an understandable refusal for financial reasons, by the applicant of the alternative option of a limited tenure position, became a secondary and consequential reason of the respondent for the decision to terminate the applicant but I do not accept that any reason of the respondent involves, or was based on age. Given that the union and the respondent, and indeed the court agree that the applicant's position was made redundant and that this was a valid reason based on the operational requirements under section 170DE(1), there remains the question of whether pursuant to section 170DE(2) the termination was harsh, unjust, and unreasonable.
If the termination is found to be harsh, unjust and unreasonable, having regard to all the circumstances of the case, then it is not a termination for a valid reason and again, the court may, if it considers it appropriate in all the circumstances of the case, order reinstatement under section 170EE(1) or compensation under section 170EE(2) and (3). In Jones v Department of Energy and Minerals, already cited, the employer's decision to dismiss Mr Jones was held viewed objectively to be not harsh, unjust, or unreasonable. Ryan J stated at 309 and 310:
“The circumstances leading to the decision included principally a major change of personnel and management structures within the department. The decision to abolish the position of Director, Mining Inspectorate was part of that process which I find was undertaken in good faith. Evidence was led that the respondent took steps to try to redeploy Mr Jones within the public service through the workforce management unit before deciding to terminate his employment. The effect of the termination on the department, according to the thrust of Mr Downey's evidence, was to enable it to shed an employee for whom no appropriate position existed within the new structure. Also relevant, according to the Bostick formulation - and that is of course a reference to Bostick v Gorgevski - is the harsh effect of the termination on Mr Jones himself. This has been described in his affidavit and evidence given before the Judicial Registrar. Mr Jones instanced the manner in which the department told him on 4 February that his position was to be abolished and the personal impact which that announcement had on him on the day before he was to take leave in difficult family circumstances. He further referred to the lack of any opportunity given to him to use his accrued sick leave entitlements. In addition, Mr Jones claimed in his affidavit of 9 September 1994 that the respondent's actions appear to have brought his career to an end. However, these alleged effects of themselves are not sufficient to render Mr Jones termination harsh, unjust, or unreasonable.”
Mr Jones has held to have received a substantial separation package upon termination, together with accrued leave salary in lieu of notice and superannuation benefits. This too is the case with the applicant. It also must be said that 90 weeks salary as a redundancy benefit for 36 years employment compares favourably with 10 weeks salary for 12 years employment which was the case in Jones.
Having said that the court is certainly not suggesting that a 90 week redundancy benefit after 36 years of effective and varied service is excessively generous. However, it is significant in any terms and is certainly significant when compared with a redundancy benefit of 10 weeks salary after 12 years.
There is one distinction of some importance between Mr Jones and the applicant. Mr Jones was given extensive counselling and assistance, albeit unsuccessful assistance, in seeking new work. 60 IR at 310. And I shall return to what I consider inadequate counselling in the case of this applicant here.
Like Mr Jones, the applicant and the union placed some emphasis not only on the financial consequences of the redundancy but also on the emotional impact and on difficult personal circumstances. Again, in Jones at 310, the reviewing judge stated:
“The legislation does not in terms provide any specific remedy for emotional consequences of a notification of redundancy. That is not to say that the manner of an employee's dismissal or defects in the procedural steps leading to it will not attract a remedy. However, a distinction needs to be drawn between those elements in the total matrix surrounding a dismissal which can render it unlawful and those which do not.”
The nature of the distinction was succinctly indicated by Commissioner Chambers in Monsanto Chemicals (Australia) Limited v Amalgamating Engineering Union (Australian section) (1958) 90 CAR 27 at 31:
“A dismissal to be harsh and unreasonable must be of a nature very different from a normal case. For the employee dismissed to be concerned, embarrassed financially, disturbed in the normal pattern of life, is not sufficient unless it can be shown that the employee created all these like difficulties by effecting dismissal without regard for all the reasonable and fair considerations one is entitled to expect in the employer/employee relationship. In addition to the external and continuing effects of his dismissal, Mr Jones complained to the manner in which the respondent terminated his employment. In his application he alleged: "The department has shown a disregard for due process and natural justice."
A Full Court of the Federal Court recently confirmed that:
“The obligation to afford procedural fairness, or observe the elements of natural justice is part of the employer's duty, not to dismiss an employee harshly, unjustly, or unreasonably.”
That is a reference to Byrne v Australian Airlines Limited (1994) 47 FCR 300 and it is specifically a reference to the statement of the Chief Justice at 303 where he endorsed a conclusion by the trial judge that:
“An award prohibiting harsh, unjust, or unreasonable dismissal imposed on an employer an obligation to give procedural fairness, the content of which would vary according to the circumstances of the case.”
The Judge in Jones continued at 311:
“The authorities in this area support the view that the content of the duty of fairness in the sense of the procedures to be followed before deciding to dismiss an employee will vary according to the circumstances of each case. No generally applicable rule can be formulated as stipulating, for example, the required extent of consultation with the employee facing dismissal, or the lengths to which the employer must go in attempting to find other work for that employee.”
In Gregory v Philip Morris (1988) 24 IR 397 to 415, consultation was described as “...often a necessity” but “not a universal rule” in cases where a provision like section 170DE(2) applies.
Certainly, many decisions of this court have accorded recognition to the importance of consultation as an element of procedural fairness in dismissals for redundancy but consultation need not always be formal and structured. In Jones, at 313, the court was not persuaded that the respondent's failure to engage in a formal process of consultation amounted to a denial of procedural fairness and considered that Mr Jones had opportunities outside a specific interview advising of redundancy to press his claims for alternative employment and that the respondent had gone to reasonable lengths to explore available options to redeploy Mr Jones.
I believe in this case also that the applicant had opportunities to suggest alternative employment and that the respondent through both Mr Viney and Mr Clues explored quite thoroughly for options for redeployment. The applicant sought, and was granted a second discussion with Mr Viney on 15 August 1995. After that interview it was the applicant, not the respondent, who wrote on 15 August:
“If I am then to be made redundant please advise me in writing in accordance with the award and legal requirements.”
Certainly, Mr Clues had been pushing hard to finalise negotiations but there is no evidence that the applicant would not have been granted more time had he asked for it. Finally, the union placed much emphasis on what were claimed to be breaches - or claimed to be many breaches by the respondent of the bank union Redeployment and Redundancy Agreement, exhibit R5. The court considered the agreement in detail and has concluded that the respondent complied with the agreement in all aspects except clause 6C which required the respondent to not only give notice of the retrenchment or repayment, or payment in lieu, which was the option chosen by the respondent under clause 6B, but also at the same time (and that was at the same time as notice) to put in place appropriate counselling and information procedures.
Of course the linking of counselling to notice can severely truncate a potential period of counselling if a payment in lieu of notice is chosen, but in this case there was no evidence of any counselling of the applicant other than a cup of coffee with the industrial chaplain on his last day of employment, 18 August 1995. In my view that is certainly not compliance with clause 6C.
The Chief Justice of this court dealt with a specific award redundancy procedure in Kenefick v Australian Submarine Corporation Proprietary Limited (1995) 131 ALR 197 at 210. The procedure was in clause 28 of the award and the Chief Justice said:
“The termination cannot be stigmatised as harsh, unjust, or unreasonable simply because of (the employer) ASC’s failure precisely and literally to apply clause 28.”
For all the reasons outlined above, while I conclude the respondent should have treated the applicant with greater consideration and should have allowed a little more time, and should have counselled him, given his good record and long service, nevertheless, in all the circumstances of the case viewed objectively, the termination was not harsh, unjust, and unreasonable. The budget overrun required staff reductions. The position was made redundant. The applicant was consulted. Options were explored. The redundancy payment was substantial and in accord with the union's bank agreement. The order of the court is that the application is dismissed.
MINUTES OF ORDERS
THE COURT ORDERS:
That the application be dismissed.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
I certify that this and the preceding 11 pages are a true copy of the reasons for judgment of Judicial Registrar Ryan.
Associate:
Dated: 22 March 1996
Mr Roger Curtis for the applicant.
Mr J Lewinski for the respondent.
Date of hearing: 12 and 13 March 1996
Date of judgment: 15 March 1996
8
0