100318312

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES TERRY PATRICK CRANSWICK

APPLICANT

 -v-

 BURSWOOD RESORT (MANAGEMENT) LIMITED

RESPONDENT

CORAM COMMISSIONER J L HARRISON

DATE  FRIDAY 19 DECEMBER 2003     

FILE NO/S APPLICATION 1299 OF 2002

 APPLICATION 1094 OF 2003

CITATION NO. 2003 WAIRC 10340

_______________________________________________________________________________

Result Application alleging unfair dismissal upheld and order issued for compensation in lieu of reinstatement.  Application for contractual benefit allowed.

Representation

Applicant Mr A Randles (of counsel)

Respondent Mr D Jones (as agent)

_______________________________________________________________________________

Reasons for Decision

1          This is an application by Terry Patrick Cranswick (“the applicant”) pursuant to s.29(1)(b)(i) of the Industrial Relations Act 1979 (“the Act”).  The applicant alleges that he was unfairly dismissed from his employment as a theatre manager with Burswood Resort (Management) Limited (“the respondent”) on 21 June 2002.  The applicant requested that this application be joined to application 1094 of 2003 which was lodged by the applicant pursuant to s.29(1)(b)(ii) of the Act claiming that he is owed a benefit under his contract of employment with the respondent.  As the respondent consented to the two applications being joined and as each application involves the same parties I formed the view that it was appropriate for both applications to be heard together.  The respondent denies that the applicant was unfairly terminated or that the applicant is due any benefits under his contract of employment.

Background

2         The applicant was employed by the respondent and its associated companies from 21 December 1985 until he was terminated due to a redundancy situation on 21 June 2002.  At termination the applicant was paid an annual salary of $68,050.00.  In addition to this base salary and superannuation entitlements the applicant was given free parking and dry cleaning and meals were provided by the respondent when the applicant was on duty. 

3         It was not in dispute that on 1 February 2002 the respondent’s employees were informed of organisational changes in the food, beverage and entertainment areas (Exhibit R5).  In March 2002 the respondent informed its employees that a new entity, Burswood Catering and Entertainment Pty Ltd (“BC and E”) was to be established to service Burswood Resort’s operations requirements in respect to food, beverage and entertainment effective as at 22 April 2002.  BC and E would also undertake contract work with outside entities.  A series of meetings about this restructure and its impact on employees were held on or about 14 March 2002.  Exhibit R6 confirms the issues discussed at these meetings.  As a result of this restructure the applicant was offered the new position of Operations Manager with BC and E. 

4         Until this restructure the applicant was employed as the respondent’s theatre manager.  The job description of the theatre manager position dated 28 September 2001 is Exhibit A5.  Exhibit A6 is a copy of the job description of the Operations Manager position that the applicant was offered as a result of the restructure.  On 19 April 2002 the applicant was offered new terms and conditions of employment to complement the new position that he was offered (Exhibit A10).  On 14 June 2002 the respondent wrote to the applicant advising him that his existing theatre manager position was redundant effective 21 June 2002 and as the applicant had declined the offer of suitable alternative employment as Operations Manager of BC and E, the applicant was informed that his employment with the respondent would cease as at 21 June 2002.

5         Whilst employed by the respondent the applicant’s contract of employment was governed by the terms and conditions of the Burswood International Resort Casino’s Employee Handbook and an offer of employment signed by the applicant on 31 March 1986. 

The Applicant’s evidence

6         The applicant stated that in 1985 he was “head hunted” to work by Burswood Island Resort (as it was then known) in the position of technical manager.  As Burswood Resort’s operations expanded the applicant’s duties changed.   In 1993 the applicant became showroom manager and this position was later renamed theatre manager.  As a result of this change the applicant’s duties changed from dealing with technical issues to venue management.  This involved the applicant negotiating contracts with clients, overseeing events management areas such as front of house staff, insurance, box office and catering, as well as managing technicians from the technical services department who worked on various theatre projects.  A flow chart outlining the different areas of the applicant’s department prior to the restructure was tendered (Exhibit A3).  The applicant gave evidence that this structure remained in place until the respondent restructured its operations in 2002. 

7         The applicant stated that he was successful in his role as theatre manager and his area often  exceeded budget expectations.  As a result on many occasions the applicant received bonuses. 

8         The applicant gave evidence that he had a close working relationship with the respondent’s technical services manager, Mr Michael Gaff who remained in this position until he was made redundant in March 2002.  When the respondent restructured its operations effective late April 2002 the applicant was offered the new position of Operations Manager and Mr Gaff’s position of technical services manager was abolished.  The applicant gave evidence that the new position of Operations Manager was difficult to undertake as the position combined the duties of his existing theatre manager position with the duties of the technical services manager (formerly Mr Gaff’s position).  The applicant was told by the respondent that the salary attached to the Operations Manager position would be frozen at the rate that he was currently being paid.  The respondent had arrived at this decision on the basis of a review conducted which maintained that the new position of Operations Manager warranted a salary less than what the applicant was currently being paid as theatre manager.  Further, the applicant was told that according to this review he was being overpaid in his existing position.  The applicant stated that he had not been consulted about this salary review and the decision to freeze the salary of the Operations Manager position.  The applicant was particularly concerned that he was being required to accept a salary freeze with no prospect of any increase in the short or long term at the same time as being required to now undertake two senior management roles. The applicant stated that in previous years he was given salary increases through a consultative and transparent review process. 

9         The applicant maintains that the duty statements detailed in Exhibits A4, A5 and A6 demonstrate that the new job of Operations Manager is a combination of his old position of theatre manager and Mr Gaff’s technical services manager position.  The applicant informed his manager Mr Darryl Cullen that the requirements of the Operations Manager position were too much for one person to undertake.  The applicant testified that when Mr Gaff was made redundant at the end of March 2002 the respondent then required him to increase his duties by undertaking the duties required of the new position of Operations Manager.  The applicant stated that even though he did not formally accept the Operations Manager position he endeavoured to meet the requirements of this position.  In late March 2002 the applicant made it clear to the respondent that he had concerns about the new position.  Following is an email sent by the applicant to Mr Cullen on 27 March 2002 about his concerns, formal parts omitted:

“The new job description for Operations Manager covers all tasks and responsibilities of my current position of Theatre Manager and the position held by Michael Gaff being Technical Services Manager.  As you are aware this is a big ask for one person.  To be able to achieve desired results it is imparitive (sic) that I receive administrative support additional to Rachael Coomber and that I receive technical support from a Technical co-ordinator.

Your assistance with this request will be appreciated.”

(Exhibit A7). 

10      Mr Cullen responded to the applicant on 6 April 2002 and informed him that an organisation called Staging Connections was being contracted to undertake technical co-ordination to assist him as Staging Connections would be doing the work previously undertaken by the technical services co-ordinator who had been made redundant at the same time as the technical services manager.  The applicant was also informed that he could access additional administrative support from a person called Jana who would be located in the convention centre.  The applicant stated that even though these initiatives took some of the load from him this additional support was insufficient for him to cope with the additional responsibilities he was expected to undertake in the Operations Manager position.  He stated that even though Staging Connections was contracted to undertake technical services work he still had to oversee its operations as well as undertake the duties of his existing position.

11      On 19 April 2002 the respondent gave the applicant an offer of employment document for the Operations Manager position with BC and E (Exhibit A10).  The applicant stated that he did not sign this offer for the Operations Manager position at this time because he did not agree with what he was being offered by the respondent.  On 22 April 2002 the applicant received a call from a Human Resources Department officer asking him why he had not signed the document.  He advised this person that as he had worked over the weekend he had not had time to read the document. 

12      At the applicant’s instigation a meeting was convened on 26 April 2002 between the applicant, the respondent’s Manager Employee and Workplace Relations Ms Kathleen Drimatis, Mr Brian McLatchie Administration Manager of Catering and Entertainment and Mr Philip Thow Executive General Manager Catering and Entertainment (Mr Cullen’s manager) in order to discuss the applicant’s concerns.  Exhibit A9 is the applicant’s file note of this meeting.  The applicant told the respondent at this meeting that his work load was too heavy, the hours he was working were too long and as Mr Cullen was on leave and unavailable from 12 April 2002 to 6 May 2002 this put further pressure on the applicant.  The applicant also requested that the lack of administrative support be addressed.  The applicant stated at this meeting that Mr Pat Pearce, who was appointed to the events manager position did not have as heavy a work load as the applicant and he told the respondent that it was unfair for him to be expected to take on two jobs and extra responsibilities and at the same time not be paid any extra money.  When the applicant was informed by Mr Thow at this meeting that his salary would be frozen for two years, he told the respondent that not only was he disappointed and shocked that his salary had been frozen, he was unhappy about the way in which the respondent had reviewed his salary and determined that he was being overpaid in his existing position.  He also stated that he was concerned that he had no opportunity to have input into the process used by the respondent to review his salary.  The applicant stated that Ms Drimatis then offered to provide him with a copy of the criteria used by the respondent to determine his salary level.  The applicant waited for the information from Ms Drimatis about his salary review however Ms Drimatis did not give him any documentation confirming the way in which the respondent reviewed his salary.  Several weeks later Mr Cullen and Ms Lee asked him why he had not signed the offer of employment given to him on 19 April 2002.  The applicant told them that he was still waiting for the criteria about how his salary was reviewed to be provided to him by Ms Drimatis.  Subsequent to this conversation the respondent informed the applicant that he would not be given a copy of the criteria used by the respondent to formulate his salary level. 

13      On 13 June 2002 the applicant met with the respondent and he again stated that he would not sign the contract for the Operations Manager position and he advised the respondent that he wanted to remain in his previous position.  As the applicant had been working in the Operations Manager position for some time he was aware of the demands of the position.  He claimed that the position had an excessive work load, he was experiencing difficulty in coping with the demands of the new position and there was to be no salary increase for undertaking the additional duties.  Matters were brought to a head at this meeting when the applicant requested that the respondent advise him of its position given his comments.  Ms Lee wrote to the applicant on 14 June 2002. 

“Dear Terry

Further to our meeting held on Thursday, 13 June 2002, in which Darryl Cullen was also present, I confirm the following.

• Your position as Theatre Manager with Burswood Resort (Management) Limited [“BR(M)L”] is redundant effective Friday, 21 June 2002.
• You have been offered suitable alternative employment in the capacity of Operations Manager with Burswood Catering and Entertainment Pty Limited (“BC&E”).

If you wish to accept this offer of employment, please sign the contract of employment provided to you and forward to Human Resources as soon as possible.

Should you choose not to accept BC&E’s offer of employment, your employment with BR(M)L will cease as at Friday 21 June 2002 at such time we would request the return of any items belonging to Burswood including your ID badge, staff card and car parking card to Human Resources.”

(Exhibit A11)

After receiving this letter the applicant continued working with the respondent until 21 June 2002.  At termination the applicant was paid his normal wages up to 21 June 2002 and he was given a termination pay advice confirming payment of his long service leave and annual leave entitlements, annual leave loading and three weeks’ pay in lieu of notice (Exhibit A12).

14      After termination the applicant applied for about 12 positions which involved running entertainment venues.  Exhibit A13 is a copy of the venues contacted by the applicant.  As the applicant was unsuccessful in obtaining employment in this area he commenced taxi driving on night shift in November 2002.  Between November 2002 and June 2003 the applicant earned approximately $20,000.00 gross (Exhibit A14).  The applicant gave evidence that he did not receive any income until November 2002.  Even though he established an entertainment business and he has undertaken some small jobs his business was currently operating at a loss. 

15      The applicant gave evidence that his termination has had a major personal impact on him.  His reduced income since being terminated has led to stresses in his life.  He has the pressure of a family to support as well as a mortgage to pay and he had limited job prospects given the lack of entertainment venues in Perth and his lack of formal qualifications.    He stated that he has had medical treatment for stress and that his doctor had recommended that he undergo counselling.  He stated that the period subsequent to his termination was the most stressful period in his life and as a result pressure was put on his marriage.  Working night shifts in his new position has led to lifestyle problems and being self employed had an impact on his ability to spend time with his family. 

16      In cross-examination the applicant was asked if he was aware if there was a notice provision in his contract.  The applicant understood that there was no specific notice period in his contract.  The applicant was asked if he would be expected to give a month’s notice to the respondent if he was to resign.  The applicant stated that out of respect for the respondent he would give a month’s notice but as he had been employed for 16 years he would talk to his manager and to the human resources section to come to some agreement.  He also stated that he would expect to be given one month’s notice by the respondent. 

17      It was put to the applicant that he was offered additional support to assist him in undertaking the position of Operations Manager.  The applicant agreed that even though this was the case Staging Connections still needed managing and overseeing.  The applicant stated that when he commenced the duties of the Operations Manager position he was undertaking the duties of the theatre manager, the technical services manager and the technical service co-ordinator positions. He stated that he was unhappy about being on a reduced salary and he again stated that he was unhappy that the respondent had not provided him with the details of the review the respondent undertook confirming the salary of the Operations Manager position.  He confirmed that Ms Drimatis reassessed the Operations Manager’s salary but the salary remained the same.

18      The applicant confirmed that he was initially offered the position of Operations Manager on or about 22 March 2002 at a meeting with Mr Cullen and he was aware at this time Mr Gaff had been made redundant effective 29 March 2002.  The applicant confirmed that he commenced carrying out the duties of the Operations Manager position on 25 March 2002.  He stated that it was not until the respondent restructured its operations in 2002 that he was aware that the respondent was reviewing his salary or that a new salary review system had been implemented by the respondent. 

19      The applicant stated that at the meeting held on 13 June 2002 with the respondent he was not given any opportunity to negotiate alternatives to termination.   He was also informed at the meeting that he would not be eligible for a redundancy payment as the respondent was offering him suitable alternative employment and he confirmed that he was told that he would be made redundant if he did not accept the Operations Manager position.  The applicant confirmed that on 14 June 2002 he was given notice by the respondent that if he did not accept the position of Operations Manager he would be terminated. 

20      It was put to the applicant that he had been given two to three months to negotiate his situation with the respondent.  The applicant maintained that he was not given any opportunity to negotiate the salary or conditions of the Operations Manager position.  The applicant stated that he did not accept the Operations Manager position because the position was not the same or similar to his existing position and because the salary was unacceptable.  The applicant was also concerned about the demands of the Operations Manager position.  As the applicant had undertaken the Operations Manager position for approximately two months by this stage he was aware of the increased work load involved with this position over and above his existing position.  It was put to the applicant that as the respondent was no longer involved in entertainment and catering the applicant could not expect to continue being employed by the respondent.  The applicant agreed that even though this was the case he understood that he was to be offered an equivalent position with B C and E and this did not happen.

21      In re-examination the applicant stated that it was his opinion that the current duties of the Operations Manager position are not the same job that he was expected to undertake as Operations Manager.  For example, the applicant was aware that Mr Pearce was undertaking theatre manager duties which the applicant previously undertook.  The applicant also re-iterated that he did not have any discussions or negotiations with the respondent about the Operations Manager position prior to being required to undertake this role.

22      Mr Gaff worked alongside the applicant as the respondent’s technical services manager for a period of five years.  He was employed by the respondent for approximately 15 years until he was made redundant at the end of March 2002.  Mr Gaff was informed by the respondent on 22 March 2002 that his position was redundant and he was given one week’s notice of termination.  He was informed in March 2002 that the respondent would pay him a redundancy package as well as all entitlements owing to him.  Mr Gaff stated that his redundancy package was increased after negotiations with the respondent.  Mr Gaff stated that at the time he was made redundant his workload was extreme.  His role included both internal and external client liaison for all of the respondent’s operational departments including the Burswood Dome and Theatre.  His department supplied technical staff for all events, he managed staff training and he was responsible for health and safety issues and the day to day running of his section. 

23      Mr Gaff was asked if one person could do both his job and that of the applicant’s former position of theatre manager.  Mr Gaff stated that even with a contractor undertaking technical services co-ordination, which was being put into place prior to his termination, one person could not successfully undertake both jobs.  He stated that this contractor only covered the duties of the technical services co-ordinator which had been made redundant by the respondent.  Under cross-examination Mr Gaff reiterated that if the existing workloads of both his former position and the applicant’s position remained the same, even with a contractor being used to undertake technical service co-ordination one person could not do both jobs.  It was put to Mr Gaff that some of the Operations Manager’s duties could be delegated.  He stated that even though this was possible not many duties could be delegated as existing employees already had their own duties to undertake and fewer people were available to undertake additional duties due to the respondent’s restructure. 

The Respondent’s evidence

24      Mr Thow is employed by BC and E and he has held his position since November 2001.  He was recruited to set up BC and E and as part of this process he reviewed the respondent’s food, beverage and entertainment section.  In February 2002 Mr Thow asked Mr Cullen to review the areas under his control with a view to restructuring his section.  As a result of this process Mr Cullen recommended that the roles of dome manager and theatre manager be combined and then split with one person responsible for operational management and the other events management.  Mr Thow confirmed that around this time meetings were held with all of the respondent’s employees to explain their transfer to BC and E. 

25      Mr Thow stated that as a result of the restructure in Mr Cullen’s area three positions were made redundant in March 2002 - that of the technical services manager, technical services supervisor and the administration manager.  It was his understanding that the functions of the technical services manager and the technical services supervisor were totally outsourced to Staging Connections and that the applicant’s role in the new position of Operations Manager would only be to oversee this contractor.  Mr Thow stated that it was his view that it was possible that the applicant could adequately fulfil his existing position and oversee the technical services contractor.  Mr Thow also understood that the applicant had sufficient staff to whom activities could be delegated. 

26      Mr Thow confirmed that he attended a meeting with the applicant in late April 2002 which was held to discuss the Operations Manager position and the applicant’s concerns about this position.  He was aware that the respondent’s Human Resources department had reviewed the salary of the Operations Manager position and a decision was made that the salary for this position should be less than what the applicant was currently being paid.  As the applicant highlighted at this meeting that some functions involved in the new position had not been given sufficient weight, Mr Thow asked Ms Drimatis to review the Operations Manager’s salary.  He understood that notwithstanding this review there was no change to the salary.  He did not recall Ms Drimatis saying at this meeting that she would give the applicant a copy of the criteria for assessing the salary but she did say she would explain to the applicant how the system worked. 

27      Mr Thow confirmed that after the applicant ceased employment with the respondent Mr Jerry Reinhardt took up the position of Operations Manager.  It was Mr Thow’s view that Mr Reinhardt has successfully undertaken the requirements of this position.  He stated that Mr Reinhardt was currently undertaking the duties of the restructured position as detailed in the duty statement (Exhibit A6) as well as undertaking some of Mr Cullen’s duties as Mr Cullen had since resigned and had not been replaced. 

28      Mr Thow stated that he had an expectation that he would receive or give three months’ notice on resignation or termination.  He stated that for staff in a similar position to the applicant one month’s notice would be usual. 

29      Under cross-examination Mr Thow confirmed that he had a provision in his contract for three months’ notice to be given by either side.  He confirmed that no timeframe was given to the applicant about when he could expect to receive a salary increase if he took on the Operations Manager position.  It was put to Mr Thow that Mr Cullen did not consult with managers in his section who would be affected by the restructure.  Mr Thow stated that he asked Mr Cullen to speak to managers in his area and inform them of what was happening, but he agreed that he did not know if these discussions took place.

30       Mr Thow was asked to comment on any differences contained in the job descriptions of the Operations Manager position (Exhibit A6) and the applicant’s previous job description (Exhibit A5).  Mr Thow agreed that the managerial functions of the technical service manager role were incorporated into the Operations Manager position (transcript pages 161 to 162).

31      Mr Thow confirmed that at the meeting held on 26 April 2002 the applicant stated that it was not possible for one person to undertake the duties required of the Operations Manager position, that he was working too many hours and that he was concerned about the lack of administrative support.  Mr Thow confirmed that the applicant stated that he was unhappy that Mr Cullen had gone on leave for three weeks during this time.  Mr Thow agreed that he was aware that the applicant was concerned about the salary level attached to the Operation Manager position.  

32      Mr Thow stated that in the past year Burswood Theatre’s revenue had increased between seven to ten percent. 

33      Under re-examination Mr Thow stated that there were minor increases in the applicant’s responsibilities when undertaking the role of the Operations Manager and that some of the duties of the Operations Manager position were just an extension of the applicant’s existing duties.

34      Mr Reinhardt is currently employed by BC and E as Operations Manager and he has held this position since 2 September 2002.  He has had approximately 32 years experience in the entertainment industry.  Mr Reinhardt confirmed that the contents of Exhibit A6 detail his current job description.  His role is to manage and oversee technical productions within the catering and entertainment department.  This primarily involves working with productions at the Burswood Theatre, Dome and the Convention Centre.  He oversees contractors, suppliers and staff involved in the events taking place at the Burswood Resort’s premises.  Mr Reinhardt confirmed that since Mr Cullen’s resignation his duties are now being undertaken by himself and Mr Pearce.  Mr Reinhardt stated that he was working between 10 to 16 hours per day depending on which events were taking place.  It was his view that one person can undertake his existing job as long as duties were appropriately delegated and efficient communications used. 

35      Under cross-examination Mr Reinhardt agreed that he did not have to do all of the venue bookings as part of his role as he shared bookings, contract and licence agreement duties with Mr Pearce.  He stated that box office duties were also delegated to another employee.

36      Ms Drimatis has been employed by the respondent since June 1999 and in August 2001 she became the respondent’s Manager Employee and Workplace Relations.  Her role is to manage recruitment and training, industrial relations, remuneration, reward and recognition for the Burswood group of companies.  She also provides advice to managers about these issues.  Ms Drimatis was asked to detail the custom and practice relating to the giving of notice on termination or resignation for those employees working with the respondent who are not covered by an award.  She stated that for senior management (executive team members) three months’ notice was given or required and in the case of managers such as the applicant one month’s notice was the custom and practice.  She stated that the contents of an extract from the Burswood International Resort Casino Employee Handbook (Exhibit R8) sets out that notice to be given or received is as set out in the employee’s contract of employment.  Ms Drimatis tendered a standard contract which currently applies to non award employees which confirms that one month’s notice is required to be given or received and Ms Drimatis confirmed that this contract came into existence after the applicant commenced employment with the respondent.

37      Ms Drimatis detailed the events leading up to the applicant being terminated in June 2002.  Ms Drimatis stated that in February 2002 employees were aware that a new department was being created to undertake entertainment and catering work and that the applicant would have been aware as early as March 2002 that his area was being reviewed.  She confirmed that on 14 March 2002 briefing sessions where held with the respondent’s 700 catering and entertainment employees as the respondent had made a decision to no longer operate in the catering and entertainment industries and employees in these areas were made redundant as at 22 April 2002.  Employees were informed during briefing sessions that they would be transferred to alternative positions with BC and E and as alternative employment was being provided no redundancy payments would be made.  Ms Drimatis recalled the applicant being at one of the briefing presentations that she gave.  She confirmed that the applicant was not formally offered the position of Operations Manager with BC and E until he received the letter from the respondent dated 19 April 2002 (Exhibit A10).  She stated that subsequent to the applicant receiving this letter a number of discussions were held with him to deal with his concerns.

38      Ms Drimatis confirmed that the applicant did not sign a contract for the Operations Manager position by the due date of 22 April 2002 and that the applicant initiated a meeting with her about his situation which took place on 22 April 2002.  The applicant stated that he was unhappy about the respondent’s actions and there was a discussion about the effect of the reorganisation on the applicant’s secretary.  The applicant was concerned that his salary was to be frozen and he was also unhappy about the quantum of the Operations Manager’s salary.  Ms Drimatis detailed the issues discussed in this meeting in an email to Mr Thow and Mr McLatchie (Exhibit R11).  A further meeting took place on 26 April 2002 with the applicant, Mr Thow, Ms Drimatis and Mr McLatchie in attendance.  Ms Drimatis gave evidence that the applicant reiterated that he was unhappy with the proposed position as there were too many tasks to undertake.  He again stated that he was unhappy about his salary and the way in which it had been determined under the respondent’s new remuneration system.  Ms Drimatis stated that the applicant was told why his salary was being frozen.  It was Ms Drimatis’ view that the applicant’s major problem at that point was the salary attached to the Operations Manager position as the applicant wanted a $20,000 salary increase per year to undertake the position.  The applicant indicated that finance responsibilities involved in the Operations Manager position had not been adequately taken in to account by the respondent when assessing the Operations Manager’s salary.  As a result of these concerns Ms Drimatis undertook to reassess the applicant’s salary and the applicant was advised that until this issue was resolved the respondent would continue to employ him.  On or about 11 June 2002 Ms Drimatis informed the applicant that his salary had been reviewed and he was advised that the respondent was not prepared to change its original assessment.  Ms Drimatis understood that other meetings took place with the applicant about his new position in the period April through to June 2002 with Ms Lee from the respondent’s Human Resources department and the applicant’s manager, Mr Cullen. 

39      Ms Drimatis was asked why the respondent continued to employee the applicant up to 21 June 2002.  Ms Drimatis stated that as the applicant was the only employee who had chosen not to undertake employment with BC and E the respondent decided to discuss his concerns to see whether or not the matter could be settled by negotiation.  She stated that as part of these negotiations the applicant raised concerns that his new position could not be undertaken by one person.  She encouraged the applicant to at least try the job and request assistance if necessary. 

40      Ms Drimatis stated that it was not abnormal for the respondent’s managers to work more than 12 hours per day given the nature of the theatre and entertainment industry. 

41      Ms Drimatis stated that it was not possible for the applicant to remain employed after the end of June 2002 because his position was redundant and the respondent was no longer involved in the catering and entertainment functions.  She stated that even though notice had been given to the applicant in March 2002 that his job was redundant the respondent paid the applicant three weeks’ pay in lieu of notice at termination in addition to the one week’s notice that the applicant worked after 14 June 2002.  It was put to Ms Drimatis that as the applicant was over 45 years of age he should have been given at least five weeks’ pay.  Ms Drimatis confirmed that if the applicant was over 45 he was entitled to five weeks’ notice.    

42      Ms Drimatis was unsure of the extent to which the applicant availed himself of the free dry cleaning offered by the respondent and she confirmed that the bonus payment that had previously been paid to the applicant had not been paid to any employee in the previous two years.  She stated that the payment of a bonus was discretionary and dependent on the respondent making a profit. 

43      Ms Drimatis confirmed that the contract dated 18 February 1986 contained the terms and conditions of the applicant’s engagement and was the initial written contract of employment applying to the applicant (Exhibit A2).  Ms Drimatis confirmed that it was not until 19 April 2002 that the applicant was given a copy of the contract for the Operations Manager position.  

44      Ms Drimatis agreed that at the meeting held on 26 April 2002 the applicant stated that two people were required to undertake the Operations Manager position.  She also agreed at that point that the applicant had been undertaking this new position for approximately one month.  She stated that the applicant commented on the fact that Mr Cullen was on holidays at an inopportune time, that Mr Cullen was more of a hindrance than a help and that Mr Cullen was happy for him to fail.  The applicant was also concerned about the lack of administrative support being offered to him.  She stated that the applicant was advised that if he required any administrative assistance he should have discussions with Mr McLatchie.    Ms Drimatis stated that the applicant also raised concerns about his salary being frozen. 

45      It was put to Ms Drimatis that the applicant was told that he was to be provided with a copy of the criteria for evaluating his salary.  Ms Drimatis said that this undertaking was never given to the applicant because the evaluation policy document would not make sense to someone who was not trained in the process.  She stated that she explained to the applicant the basis upon which the applicant’s salary had been evaluated.  Ms Drimatis was asked if any other of the respondent’s employees had their salaries frozen since the restructure.  She stated that there were six to seven people whose salaries were frozen and she confirmed that at this point their salaries were still frozen.   

46      Ms Drimatis confirmed that the applicant was a senior employee and that he managed a number of staff.

Submissions

47      The applicant maintains that he was denied a benefit under his contract of employment in relation to notice.  The applicant says that he should have been given a period of two years’ notice due to the difficulty in obtaining equivalent employment elsewhere and given the authority contained in Jager v Australian National Hotels Pty Ltd [1998] TASSC 54.  The applicant also relies on the indicia outlined in Antonio Carlo Tarozzi v WA Italian Club (Inc) (1991) 71 WAIG 2499 in support of this contention.

The applicant argues that as there was no express notice period in his contract of employment an appropriate notice period should be determined by the Commission.  The applicant maintains that he was a senior employee who managed a large budget, he supervised at least six full-time and up to a hundred casual employees, he negotiated substantial contracts and he enjoyed the benefit of a significant remuneration package of over $70,000.00 a year.  He was head hunted for his initial position and he had over 16 years of excellent and committed service with the respondent.  Alternative employment options for the applicant in Perth were limited.  Given these elements the Commission should determine that the applicant is due a significant period of notice.  The applicant also argues that the respondent’s claim that the applicant was offered suitable alternative employment should not be taken into account when determining the appropriate amount of notice due to the applicant.  In any event the applicant argues that the position of Operations Manager did not constitute suitable alternative employment for the applicant.

48      The applicant argues that the respondent repudiated its contract of employment with him by unilaterally changing his duties in March 2002.  At the time the applicant was given no option but to take on the Operations Manager role whilst he endeavoured to negotiate a reasonable outcome so that he could remain in this position.  In the event there was no agreement between the parties and the applicant accepted the respondent’s repudiation of its contractual obligations to the applicant in June 2002.  The applicant’s employment was then terminated.  The applicant argues that when the respondent repudiated its contract with the applicant this rendered his termination unlawful.

49      The applicant claims that the position of Operations Manager was significantly different to the applicant’s previous position and the evidence given by the applicant, Mr Gaff, Mr Thow and Mr Reinhardt supports this contention.  As Mr Gaff and the applicant had first hand knowledge of the duties entailed in the positions they occupied prior to the restructure then their evidence on the workload of each position should be preferred to that of Mr Reinhardt and Mr Thow.  As Mr Cullen was not called to give evidence the Commission should make an adverse finding in relation to the respondent’s evidence about the duties of the theatre manager position compared to the duties of Operations Manager.

50      The applicant argues that terminating the applicant in June 2002 was not the only option available to the respondent as the respondent had the capacity to employ the applicant in a different position.  However this option was not explored by the respondent.  

51      The applicant maintains that the respondent acted unlawfully by not giving the applicant sufficient notice in accordance with the implied terms of his contract of employment.  The four weeks’ notice given to the applicant did not even meet the requirements of the notice provisions under the Workplace Relations Act 1996 (“the WR Act”).  Further, there was no condition of the applicant’s contract of employment that allowed the respondent to pay the applicant in lieu of notice. 

52      The applicant submits that the provisions of the Minimum Conditions of Employment Act 1993 (“the MCE Act”) relating to a redundancy situation were breached.  When it was made clear to the respondent that the applicant would not accept the Operations Manager position on the terms and conditions offered to him the respondent decided to make the applicant redundant effective 21 June 2002.  Discussions were not held with the applicant to canvass alternatives such as working out his notice, undertaking job interviews, possibly negotiating a redundancy payout, accessing outplacement services and training and resumé assistance once the applicant was given notice of his termination.  The applicant relies on the authority of Gary Edward Garbett v Midland Brick Company Pty Ltd (2003) 83 WAIG 893 in support of his contention that the MCE Act was breached.  When the applicant was terminated he was given no other option but to take the new contract or accept his termination. 

53      The applicant argues that given the manner of his termination he has suffered substantial injury over and above that which is normally associated with a termination.  The applicant developed medical problems and his relationship with his family was under stress as a result of his treatment by the respondent.  As the applicant was a long term dedicated employee this poor treatment was unwarranted and inappropriate.  The applicant is thus seeking $5,000 for injury. 

54      The applicant is claiming compensation based on his annual salary of $68,050.00 plus $1,950.00 per year in benefits for free dry cleaning, meals and parking.  The applicant is also seeking compensation for the loss of superannuation entitlements. The applicant maintains that as his loss is in excess of the six month cap as provided for in the Act then he should be compensated for at least this amount. 

55      The respondent submits that the applicant was not unfairly terminated and that he is not due any additional payment for notice.  The respondent maintains that it did not repudiate its contract with the applicant as no contract with the applicant remained in place once the respondent decided to make the applicant redundant.  As the applicant was effectively made redundant in March 2002 there was no repudiation of the applicant’s contract of employment.  The respondent also maintains that the applicant was given adequate notice of his termination because he was told on 14 March 2002 that his position was to be made redundant effective 22 April 2002.  Further, the applicant did not contest his redundancy as he continued to undertake the tasks of the Operations Manager position. 

56      The respondent maintains that throughout the period April 2002 through to June 2002 the main issue raised by the applicant in numerous discussions with the applicant revolved around the salary of the Operations Manager position. 

57      The respondent claims that it did not breach the requirements of the MCE Act in relation to redundancy because the applicant was informed in early March 2002 that his position was redundant and numerous discussions took place between March and June 2002 about the applicant’s situation.  There was no need to canvass alternative employment options with the applicant during these discussions because no other jobs with the respondent existed.  The only alternative available to the applicant was the Operations Manager position offered by BC and E. 

58      The respondent agreed that even though other employees who were made redundant and did not transfer to BC and E as a result of the respondent’s decision to restructure its operations negotiated redundancy packages the applicant was not due any payment for redundancy because the applicant was offered suitable alternative employment with BC and E.  Further there was no express provision in the applicant’s contract of employment for a redundancy payment to be made. 

59      The respondent maintains that the applicant did not suffer any injury as a result of his termination.  At no stage was the applicant pressured to sign the new contract offered to him by BC and E and the respondent extended the notice period for negotiations to assist the applicant in taking up the position offered to him.  In adopting this time frame the respondent took into account the applicant’s lengthy employment history with the respondent.  The respondent maintains that if it is found that the applicant’s termination was unfair then the loss can only be for that period that allowed the employment to have been brought to an end lawfully. 

60      The respondent argues that the applicant was given proper notice when he was terminated.  The respondent submits that the evidence demonstrates that the giving of one month’s notice is the custom and practice for the respondent’s managers.  The Commission should also take into account that the applicant agreed that one month’s notice would be appropriate on termination or resignation. It was further submitted that whilst the applicant’s own assessment as to reasonable notice is not conclusive it should be accepted by the Commission (Westen v Union Des Assurances De Paris 88 IR 295 at 265).  The Commission first needs to consider industry custom and practice and in the absence of this then the indicia outlined in Antonio Carlo Tarozzi v WA Italian Club (Inc) (op cit) is to be considered.  The offer of employment with BC and E should also be a consideration.  The respondent maintains that if custom and practice is not accepted then three months’ notice is the maximum period that should be awarded.  The respondent argues that the test of what a reasonable person would expect to receive should also be applied when assessing adequate notice.  

61      The respondent argues that there is no evidence before the Commission that a payment in lieu of notice could not be made.

62      The respondent argues that the applicant’s remuneration package should not take into account bonus payments and free dry-cleaning and other benefits as no bonus payments have been made in the previous two years and it was unlikely that bonuses would be paid in the future.  The respondent maintains that it is difficult to quantify dry cleaning and other benefits that the applicant is claiming.  Further these benefits were not taken into account when the applicant was paid out at termination.  The respondent concedes that superannuation is to be considered as part of the applicant’s remuneration package and can be taken into consideration for loss.

Findings and Conclusions

Credibility

63      I listened carefully to the witnesses whilst they were giving evidence.  In my view each witness gave their evidence honestly and to the best of their recollection.  On this basis I accept the evidence given in these proceedings.  The main issue in dispute related to the workload involved in the Operations Manager position offered to the applicant.  In this regard I place more weight on the evidence of the applicant and Mr Gaff in preference to Mr Thow and Mr Reinhardt’s assessment of the workload and duties of the Operations Manager position.  The applicant and Mr Gaff both worked in their respective positions for many years and the applicant worked in the Operations Manager position from March 2002 to 21 June 2002.  In my view the applicant and Mr Gaff would have been in the best position to assess the demands of the Operations Managers position compared with Mr Thow and Mr Reinhardt’s judgement.  I also take into account Mr Thow had only recently commenced employment with BC and E at the time the applicant was terminated and that the evidence was clear that Mr Reinhardt was not undertaking the same duties as the applicant when he undertook the Operations Manager position.

64       I turn now to the principles in relation to these matters and my findings and conclusions.

Is the Applicant due a Benefit under his Contract of Employment?

65      In an application for contractual benefits under s.29(1)(b)(ii) of the Act, the onus is on the applicant to establish that the subject of the claim is a benefit to which the applicant was entitled under his or her contract of employment.  It is for the Commission to determine the terms of the contract of employment and to ascertain whether the claim constitutes a benefit which has been denied under the contract of employment, having regard to the obligations on the Commission to act according to equity, good conscience and the substantial merits of the case (Belo Fisheries v Froggett (1983) 63 WAIG 2394; Waroona Contracting v Usher (1984) 64 WAIG 1500; Perth Finishing College Pty Ltd v Watts (1989) 69 WAIG 2307).

66      The applicant is claiming a payment of two years’ notice which the applicant maintains is appropriate to be implied into his contract of employment given that there was no express notice period contained in the applicant’s contract of employment.  The applicant relies on the authority of Jager v Australian National Hotels Pty Ltd (op cit) and Antonio Carlo Tarozzi v WA Italian Club (Inc) (op cit) in support of this claim.

67      It was not in dispute that the applicant had no express notice period under his contract of employment with the respondent and that when the applicant was terminated his notice period was determined by the respondent with no discussion with the applicant.  Where there is no express period of notice provided for in a contract of employment, a period of reasonable notice is to be implied into the contract of employment.  His Honour the President stated in Antonio Carlo Tarozzi v WA Italian Club (Inc) (op cit) at 2501:

“1.  Cohen v Nichevic [1976] WAR 183 is authority for the proposition that if a contract of service was silent on what notice was given, then the servant was entitled to reasonable notice and what was reasonable notice was, in every case, a question of fact.

 2.   Macken, McCarry and Sappideen "The Law of Employment" (3rd Edition) seemed to indicate a slightly different proposition. It is expressed in the following manner:-

  (a)  The length of notice required to put an end to a contract may be specified or implied. If it is not, then the notice given must be reasonable.

(b)  Reasonableness is determined at the time notice is given, not at the time the contract is made (see Martin-Baker Aircraft Co Ltd v Canadian Flight Equipment Ltd [1955] 2QB 556 at 581).

  3. Thus, where no length of notice is specified, it may be implied, and this will be a matter of construction of the contract.

 4.  Possibly, a specific length of notice ascertained by reference to custom or trade practice may be found to exist, but more usually the only implication available will be that reasonable notice to terminate must be given.

 5.  In this case, the only implication available was that reasonable notice would be given.

 6.  The rule as to what is reasonable is not rigid and the fact that one month's notice might   have been required to be given by the Secretary, does not mean that the same notice is to be given by the Club (see the observations of Jacobs J in Thorpe v South Australian Football League (1974) 10 SAR 17.

 7.  Evidence of industry practice or customs will be material.

  There is, however, no evidence of that here, save and except that the Federal award, which applies to lesser paid jobs, provides notice of one month. There is some evidence that one month is not sufficient for this position. What is reasonable notice will depend on the circumstances of the case and one cannot place too great a reliance on particular instances.

12. It seems, on a consideration of the authorities, that the following matters may be relevant factors:

(a) The high or low grade of the appointment.

(b) The importance of the position.

(c) The size of the salary.

(d) The nature of the employment.

(e) The length of service of the employee.

(f) The professional standing of the employee.

(g) His/her age.

(h) His/her qualifications and experience.

(i) His/her degree of job mobility.

(j) What the employee gave up to come to the present employer (eg a secure     longstanding job).

(h) (sic)The employee's prospective pension or other rights.

13. In this case the following factors are relevant:-

(a) Mr Tarozzi was 42 years of age.

(b) He gave up a secure job.

(c) He was not in that job longitude.

(d) His length of service with the respondent was not longitude.

(e) He had professional degrees and qualifications.

(f) His salary was a middle management salary.

(g) Whilst his qualifications were of a middle management type, his position, to all intents and purposes, on the evidence, was not a middle management position. He was effectively the Manager of an enterprise.

(h) There was no evidence that he lost any pension or other right by his dismissal.

14. In the circumstances, taking all of those factors into account, reasonable notice would have been three months.”

68       The respondent led evidence that the custom and practice for its senior employees was that one month’s notice is to be given or received on termination or resignation.  I note that even though that may be the custom and practice for managers employed by the respondent, what constitutes reasonable notice will depend on each individual’s circumstances.

69       When assessing the amount of notice which should have been due to the applicant, and taking into account the criteria set out in Antonio Carlo Tarozzi v WA Italian Club (Inc) (op cit)  I find that it would have been reasonable for the applicant to have been given six months’ notice by the respondent.  I base this assessment on the following factors which I find to be relevant in this case.  The applicant was 47 years of age at termination which is an age where an employee may experience difficulty in obtaining alternative employment.  He worked for the respondent for an extensive period, approximately 16 years.  The applicant received a remuneration package commensurate with a senior management position and he was employed in a position which was an integral part of the respondent’s operations.  The applicant was a very experienced and successful employee and his services were clearly appreciated by the respondent as he had been consistently rewarded with regular salary increases and bonuses.  The applicant was sought out for his initial position with the respondent and the applicant did not have a high degree of job mobility given the small size of the theatre/entertainment industry in Western Australia.  In my view these factors point to  a reasonable period of notice of six months being due to the applicant

70       I therefore find that the applicant is owed a period of six months’ notice less the one month’s notice already paid to the applicant.

Was the Applicant Unfairly Termination?

71      The applicant argues that the respondent repudiated its contract of employment with the applicant when the respondent unilaterally altered the applicant’s duties in March 2002.  Even though the applicant was expected to undertake the duties of the Operations Manager position between March 2002 and June 2002 I accept the respondent’s argument that this was done in the context of the applicant’s existing position becoming redundant in March 2002 and the respondent’s view that the applicant would be able to meet the demands of the Operations Manager position.  I also accept that the respondent and the applicant agreed to negotiate the terms and conditions and the duties of the Operations Manager position during this period.  As the applicant accepted this time frame within which to discuss the prospect of undertaking employment with BC and E in the position of Operations Manager it is my view that the respondent did not repudiate its contract with the applicant in March 2002.  At the end of the period of negotiation it became clear that no agreement was going to be reached thus it was appropriate in the circumstances that the applicant’s existing position be made redundant and the applicant terminated.

72      When the applicant was terminated in June 2002 it was common ground that he was terminated due to a redundancy situation.  Redundancy is itself a sufficient reason for dismissal (Amalgamated Metal Workers and Shipwrights Union of Western Australia and Other v Australian Shipbuilding Industries (WA) Pty Ltd (1987) 67 WAIG 733).  Despite the requirement to accord procedural fairness, not every denial of procedural fairness will entitle an employee to a remedy.  No injustice will result if after a review of all the circumstances of the termination it can be said that the employee could be justifiably dismissed (Shire of Esperance v Mouritz (1991) 71 WAIG 891; Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 430 per Brennan CJ, Dawson and Toohey JJ and at 466 per McHugh and Gummow JJ).  If a decision is made to make an employee redundant based on the operational requirements of the company that can be a valid reason for the dismissal.  In this case I am of the view that the applicant was terminated for a valid reason.  It was not in dispute that the respondent restructured its operations in early 2002 and as a result the respondent abolished all positions in the areas of food, beverage and entertainment, including the applicant’s position of theatre manager.  In the circumstances I find that the applicant was terminated due to a genuine redundancy situation.

73       Having said that it is appropriate to consider any unfairness in relation to the process used in effecting the applicant’s redundancy, as well as all of the circumstances surrounding the applicant’s termination of employment having regard to s.26 of the Act.  The question to be determined by the Commission is whether the legal right of the respondent to dismiss the applicant has been exercised harshly or oppressively against the employee so as to amount to an abuse of that right (Undercliffe Nursing Home v The Federated Miscellaneous Workers’ Union of Australia, Hospital, Service and Miscellaneous, WA Branch (1985) 65 WAIG 385).

74       The provisions of Part 5 of the MCE Act are implied into the applicant’s contract of employment.  A failure to comply with the mandatory requirements under s.41 of the MCE Act is a factor to be taken into account in deciding whether a dismissal is unfair (Gilmore v Cecil Bros and Ors (1996) 76 WAIG 4434, per the President at 4445).  See also WA Access Pty Ltd v Vaughan (2000) 81 WAIG 373 at 378 and cases cited therein). 

75       Section 41 of the MCE Act provides

“41. Employee to be informed

(1) Where an employer has decided to — 

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

(b) make an employee redundant,

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

(2)  The matters to be discussed are — 

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

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

as the case requires."

76       Section 43 of the MCE Act provides

“43. Paid leave for job interviews, entitlement to (sic)

(1) An employee, other than a seasonal worker who has been informed that he or she has been, or will be, made redundant is entitled to paid leave of up to 8 hours for the purpose of being interviewed for further employment.

(2)  The 8 hours need not be consecutive.

(3)  An employee who claims to be entitled to paid leave under subsection (1) is to provide to the employer evidence that would satisfy a reasonable person of the entitlement.

(4)  Payment for leave under subsection (1) is to be made in accordance with section 18.”             

77       Section 41 provides that where an employer has decided to make an employee redundant the employee is entitled to be informed by the employer as soon as is reasonably practicable after the decision has been made of the redundancy and discussions are to be held with the employee about the likely effects of the redundancy and measures that may be taken to avoid or minimise its effect.  I do not accept the respondent’s argument that as the applicant was informed in early March 2002 that his existing position was redundant and as numerous discussions were held with the applicant about undertaking the new Operations Manager position then the requirements of s.41 were satisfied.  In my view the requirement to hold discussions with the applicant about the effect of the redundancy and measures to be undertaken to avoid or minimize the effect of the redundancy were not met.  The evidence was clear that no specific discussions were held with the applicant about the effect on him of being made redundant and alternatives to redundancy were not canvassed once the decision was made by the respondent in mid June 2002 to terminate the applicant due to a redundancy situation.  Even though the respondent endeavoured to assist the applicant in coping with the Operations Manager position between March 2002 and June 2002 these  discussions did not address the overall impact of the redundancy on the applicant.  The applicant was informed on 14 June 2002 that his employment with the respondent was to be terminated and that he was to cease working with the respondent on 21 June 2002, which is a very short time frame.  Apart from the applicant taking up the position of Operations Manager no other options or alternatives were canvassed with the applicant.  Redeployment or retraining options were not canvassed, nor was the applicant given any opportunity to discuss accessing outplacement services or financial planning once the respondent made a final decision to terminate the applicant.  Even though the respondent argued that it was no longer operating in the entertainment industry in which the applicant was employed this does not mean that the required consultation and discussions should not have occurred.  For this reason, I consider that to the extent the applicant was not consulted in relation to his dismissal and relevant discussions were not held with the applicant once a decision was made to terminate the applicant effective 21 June 2002 then his termination was unfair.  Further, as a result of the applicant only being given one week’s notice of his termination s.43 of the MCE Act was unable to be complied with as the applicant was unable to avail himself of paid leave to attend for job interviews during this short period that he remained working with the respondent.  I therefore find that in this respect the applicant was also treated unfairly.

78      I have already found that the applicant should have been given six months’ notice when he was terminated in June 2002.  Even though the respondent argues that the applicant was aware in March 2002 that his position with the respondent had been abolished and that he was to undertake employment with BC & E in the Operations Manager position I find that the applicant was not specifically advised by the respondent that he was to be terminated until 14 June 2002.  Prior to this date both the applicant and respondent were involved in discussions with a view to the applicant taking up the new position offered to him by BC & E.  From March 2002 to 13 June 2002 both the respondent and the applicant continued working on the basis that problems the applicant had with the duties of the Operations Manager position and the salary for this position may have been satisfactorily negotiated.  In the event this did not occur.  In the circumstances it is my view that the applicant was given his notice of termination on 14 June 2002 and as the applicant ceased employment with the respondent on 21 June 2002 this period of notice was clearly inadequate.  This lack of notice also contributed to the unfairness of the applicant’s termination. 

79      I find that the respondent acted unlawfully when it terminated the applicant on 21 June 2002 by the giving of three weeks’ pay in lieu of notice.  There was no capacity for the respondent to pay the applicant three weeks’ pay in lieu of notice at termination as there was no provision in the applicant’s contract of employment allowing for this payment to be made.  Sanders v Snell [1998] HCA 64 at [16]; 196 CLR 329 at 337 Gleeson CJ, Gaudron, Kirby and Hayne JJ is authority confirming that where there is no condition in an employee’s contract of employment for payment in lieu of notice to be made the employer is in breach of its contract with the employee if the employer does not allow an employee to work out his or her notice of termination.  As the applicant was unlawfully given a payment in lieu of notice I find that this contributed to the applicant being unfairly terminated.

80      The respondent argued that as the applicant was offered suitable alternative employment which he declined there was no necessity for the applicant to be given a redundancy payment.  The respondent also maintains that in any event the applicant had no entitlement to a redundancy payment as this entitlement was not an express term of the applicant’s contract of employment.  The test for determining whether alternative employment offered to an employee constitutes suitable alternative employment is an objective one (Clothing & Allied Trades Union of Australia v Hot Tuna Pty Ltd (1988) 27 IR 226).  In applying an objective test to this circumstance it is my view that the factors that require consideration are whether the new position to be performed is within the same range of duties previously undertaken by the applicant and whether the terms and conditions of employment for the applicant’s existing and new position are similar.  I find that the duties of the Operations Manager position were not within the same range of duties expected of the applicant in his previous position.  I accept the evidence given by the applicant and Mr Gaff that the position of Operations Manager which was offered to the applicant entailed a significant increase in the duties required of the applicant over and above the duties expected of the applicant in his existing position.  These additional tasks which were expected of the applicant were also confirmed by Mr Thow.  Based on the evidence and my views on witness credit I find that the Operations Manager position incorporated a significant amount of duties involved in Mr Gaff’s technical services manager position.  Even though Mr Reinhardt gave evidence that the Operations Manager position was manageable I accept the applicant’s evidence that his current duties are not the same as the duties required of the Operations Manager when the applicant undertook this role from March 2002 until he was terminated on 21 June 2002.  I also note that Mr Reinhardt works an excessive amount of hours per day (between ten to sixteen hours) in order to undertake the Operations Manager role.  Even though the technical services co-ordinator’s duties were allocated to a contractor the Operations Manager position still required the contractor to be supervised which in my view would have formed a substantial part of the duties required of the Operations Manager position.

81       I find that the conditions of employment attached to the Operations Manager position were not similar to or the same as the applicant’s existing position.  I have reached the view that the remuneration attached to the Operations Manager position was not equal to the applicant’s existing remuneration.  Even though the applicant was to be paid the same salary for the Operations Manager position as he had been paid in the position of theatre manager, the Operations Manager’s salary was to be frozen for an unspecified timeframe as a result of the respondent applying its new salary review formula.  The applicant was paid bonuses in his existing position and even through Mr Thow gave evidence that BC and E had been operating profitably since its inception employees whose salaries were frozen had not had their salaries increased nor were employees paid a bonus since March 2002.  I accept the applicant’s evidence that up to early 2002 his salary was regularly reviewed and increased using a process which was both consultative and transparent.  The applicant was also regularly paid bonuses for meeting targets.  There was no evidence from the respondent confirming that the applicant would receive free dry-cleaning, parking and meals in the Operations Manager position.   On this basis I have reached the view that the applicant would therefore be receiving a reduced remuneration package in the Operations Manager position to that of his existing position. 

82       I thus find that the position of Operations Manager which was offered to the applicant in March 2002 did not constitute suitable alternative employment for the applicant. 

83       When the respondent wrongly decided that the Operations Manager position constituted suitable alternative employment the applicant was deprived of the ability to negotiate a redundancy package, which in my view constitutes a substantial unfairness towards the applicant.  Even though there was no express term of the applicant’s contract of employment for an entitlement to a redundancy payment the respondent confirmed that the applicant was denied the opportunity to negotiate a suitable redundancy payment on the basis that the respondent had the view that the Operations Manager position constituted suitable alternative employment.  When the respondent decided that suitable alternative employment was unavailable for other employees at this time these employees were able to negotiate a redundancy payment.

84       In all of the circumstances I find that the applicant was terminated unfairly.  He was not given a fair go all round.

Injury

85       The notion of injury must be treated with some caution.  In AWI Administration Services Pty Ltd v Birnie (2001) 81 WAIG 2849 Coleman CC and Smith C observed at  2862:

“It is accepted that there is an element of distress associated with almost all employer initiated terminations of employment.  For injury to be recognised by way of compensation and thereby fall outside the limits which can be taken to have normally been associated with a harsh, oppressive or unfair dismissal there needs to be evidence that loss of dignity, anxiety, humiliation, stress or nervous shock has been sustained.  Injury embraces the actual harm done to an employee by the unfair dismissal.  It comprehends ‘all manner of wrongs’ including being treated with callousness (Capewell v Cadbury Schweppes Australia Limited (1998) 78 WAIG 299).”

86       In my view the applicant has suffered some injury over and above that which is normally associated with a termination.  The applicant had given many years of loyal service to the respondent and was clearly committed to remaining employed with the respondent which was demonstrated by the applicant’s efforts to meet the extensive  and onerous demands of the new Operations Manager position.  In the event, despite working long hours the applicant was unable to meet the demands of this position and was given one weeks’ notice before leaving his employment with the respondent.  I find that the respondent’s very poor handling of the applicant’s termination, the short notice he was given, the lack of due process in effecting his redundancy, combined with the suddenness of the applicant’s termination contributed to the applicant being stressed as a result of his termination and needing to seek out medical assistance.  I accept that the industry within which the applicant worked is a small industry and there is thus a limited likelihood of finding alternative employment at short notice thus putting further pressure on the applicant’s health.  I accept the applicant’s evidence that his health and family relationships suffered significantly as a result of the way his termination was handled and that this stress was over and above that normally associated with an unfair termination.  In the circumstances it is my view that the application should be awarded $1,000 as compensation for injury.

Compensation for Unfair Dismissal

87       I now turn to the question of relief in this case.

88       The applicant does not claim reinstatement and in my view, given the particulars of this case reinstatement is impracticable.  It is clear on the evidence that the applicant has satisfied the onus on him to seek out alternative employment. 

89       The respondent failed to comply with Part 5 of the MCE Act.  As a result the applicant was deprived of the opportunity to discuss alternatives to termination, to negotiate a redundancy package and to avail himself of the opportunity to explore re-training and financial assistance.  Further, the applicant has, as I have already noted, been deprived of the ability to avail himself of the statutory right under s.43 of the MCE Act to paid leave of absence for the purposes of attending job interviews.  I consider the applicant’s loss to be a period to enable the matters in Part 5 of the MCE Act to be attended to including the possible negotiation of a redundancy package, which I find in this case to be a period of four weeks. This period should have been available to the applicant prior to being given notice of termination and is thus to be paid in addition to the notice I have determined is due to the applicant.  In assessing this timeframe I take into account the nature of the respondent’s operations and the extensive range of options, possible retraining and resources that the applicant could have canvassed and accessed.  The applicant is also claiming payment for loss of superannuation payments and additional benefits quantified at $1950 per annum.  I find that the applicant should be compensated for the loss of superannuation payments and the additional benefits normally due to him under his contract of employment with the respondent.

90       The parties are to confer within seven days of the date of this decision to agree on the amount to be paid to the applicant in light of these reasons for decision.