C2007/2713, Transcript of Proceedings [2007] AIRCTrans 327 (3 July 2007)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 17031-1

JUSTICE GIUDICE, PRESIDENT
SENIOR DEPUTY PRESIDENT DRAKE
COMMISSIONER WHELAN

C2007/2713

s.120 - Appeal to Full Bench
Appeal by Cruickshank, Andrew
(C2007/2713)

MELBOURNE

10.33AM, MONDAY, 18 JUNE 2007

Reserved for Decision

PN1

MR H BORENSTEIN: If the Commission pleases I seek leave to appear on behalf of the appellant with MR M FELMAN.

PN2

MS A DUFFY: I seek leave to appear on behalf of the respondent.

PN3

JUSTICE GIUDICE: Leave is granted in each case.

PN4

MR BORENSTEIN: Thank you, your Honour, and may we thank the bench for allowing us a bit of time. There was a matter that came up over the weekend which may have affected the conduct of the appeal and we had to resolve that before we could proceed and we've now done that. Thank you.

PN5

If the Commission pleases, we've taken the liberty of preparing an outline of argument which may assist in expediting the footing of the submissions and can we hand up some copies of those, please.

PN6

JUSTICE GIUDICE: It's a pretty comprehensive outline.

PN7

MR BORENSTEIN: I'm hoping not to have to say very much, your Honour.

PN8

JUSTICE GIUDICE: Has Ms Duffy seen this?

PN9

MR BORENSTEIN: Yes, she has, but I propose to go through it.

PN10

MS DUFFY: Only just, your Honour. I haven't read it.

PN11

MR BORENSTEIN: Your Honour may feel the heat on the pages, it being hot of the presses.

PN12

If the Commission pleases this is an appeal in a matter where Mr Cruickshank was terminated in his employment on the basis of redundancy from a position which he contended had not been made redundant and in circumstances in which he contended that the reason why he had been made redundant was that he was being paid at a particular level of remuneration and that the company wished to engage someone to perform his job, or essentially his job at a lower level of remuneration as part of an overall cost-cutting exercise which had been prompted by some financial difficulties that the company had confronted.

PN13

The matter came before Commissioner Eames and the genuine operational reasons issue was raised as the jurisdictional issue under section 649 and that's the basis upon which the hearing took place before Commissioner Eames. He upheld the company’s application under the section and his decision can be found at tab 2 of the appeal papers that were filed and it's against that decision that we seek leave to appeal under section 120 of the Act.

PN14

We've collected at paragraph 3 of our outline the facts relevant to the arguments we wish to put on the appeal which the Commissioner actually found and it will be seen that he found at paragraph 2 of his decision that the applicant,
Mr Cruickshank, had been employed with Priceline since April 2003 and that he had been employed in the position of a space planner. As I understand it, and I don't claim any expertise in this matter, what that person does is to coordinate the placement of products on the shelves at the various stores and franchise stores that are connected with Priceline.

PN15

When Mr Cruickshank was originally employed he was the sole space planner - it sounds like something out of Dr Who - for the company but subsequently there were other space planners who were also engaged and it will be seen that the finding that the Commissioner made at paragraph 2 was that in October 2004 Priceline was acquired by another company and at that point Mr Cruickshank was appointed to the position of space planner health division.

PN16

There are various divisions which deal different types of products that go into the Priceline stores, so for example, there are hair products, beauty products, lifestyle products and health products and he was appointed in 2004 to the position of space planner for health products which meant that he focused on that type of product.

PN17

It was in October 2006 that a review was initiated by the CEO of Priceline after some financial difficulties that they had encountered and there was, as a result of that review, a restructure of the operations of Priceline and there's a finding about that at paragraph 10 of the decision. The review resulted in a new organisational structure and that entailed a reduction of employment costs and staff requirements and the net effect of that, according to the finding at paragraph 11, was that
32 positions were taken out of the structure.

PN18

The space planners' positions were reduced from four to two and I should say that although there were four positions, the evidence was, although there's no finding about this and I think the finding of the Commissioner at paragraph 12 misapprehended the actual position, there were only three employed space planners at the relevant time and two of them were made redundant. The two that were made redundant were the two highest paid of the three but you will see in paragraph 12 that it seems that the Commissioner has assumed that there were actually four employees in the space planners' position but there were not and I don't think that's contentious.

PN19

There were a number of matters which Mr Cruickshank advanced at the hearing before the Commissioner, the main thrust of his argument being that the position had not been made redundant in fact as a result of the restructure and there were items of evidence which it's submitted the Commissioner made no findings about and makes no reference to in the decision. We've listed those in paragraph 5 and you will see that there was no reference to the fact that of the two retained space planner positions, one of them was to be in health and lifestyle, that Mr Cruickshank had worked as a space planner in health and lifestyle, that the position of the health and lifestyle planner had been internally advertised shortly after Mr Cruickshank's dismissal.

PN20

In the witness statement which was tendered in evidence, attachment F sets out the internal job vacancy and the elements of the position description. Does the Bench have that? It's perhaps not easy to find. It's behind tab 6 but unfortunately the internal page numbers are - - -

PN21

COMMISSIONER WHELAN: Is it the last page you're referring to, Mr Borenstein?

PN22

MR BORENSTEIN: I'm sorry?

PN23

COMMISSIONER WHELAN: Is it the last page behind tab 6 that you're referring to?

PN24

MR BORENSTEIN: No, it's not the last page behind tab 6, it's - I'll count them back - exhibit F.

PN25

COMMISSIONER WHELAN: I see, right.

PN26

MR BORENSTEIN: Exhibit G is on a side and then it's the one before that. You will see that it's an advertisement that's distributed by divisional leader health, a Mr Geoff Woolley, a person who wasn't called to give evidence. Then you'll see that there's a job description and there's a series of boxes with various functions and so on. Then, if one goes further back in that tab you will see at exhibit A
Mr Cruickshank has exhibited the original job description which was provided to him when he first started work.

PN27

The description of the functions under that bear a remarkable resemblance if not identity to the description in the internal job vacancy in F, to the point where in exhibit G Mr Cruickshank made a comparative chart setting out the items on each of the two job descriptions and noting the lack of any difference between them, except for one item on the first page. This was part of his case. This was part of the evidence that was advanced in support of the argument that there was no substantive difference between the position from which he had been made redundant and the position which was, shortly after, internally advertised.

PN28

When he came across, became aware of the internal advertisement, he made contact with the company and raised it with a gentleman by the name of Stephen Roche who was the CEO of the company and following that he was rung by a gentleman called Georg Meiliunaus, who is the human relations team leader of the company. In discussions with him about the internally advertised position, he was told by Mr Meiliunaus that he was not sufficiently qualified for the position. Mr Meiliunaus was not called as a witness, even though this material was in the witness statements that were filed on behalf of Mr Cruickshank well before the hearing.

PN29

A witness who was called for the company, a Mr Stapleton, gave evidence, and we've given the transcript reference number, and the transcript is at tab 3 - gave evidence that the intention of the restructure was to utilise someone with less experience in the position. His view was that Mr Cruickshank was overqualified for the job. There was evidence about one of the executives of the company saying that he was underqualified and then evidence from another person from the company saying he was overqualified.

PN30

He didn't get the job and then on 27 November the job was found by Mr Cruickshank to be advertised on the internet and he's attached a copy of that job advertisement at exhibit H, which is the second-last page in tab 6. It will be seen that the description there is of someone who is a space planner to join the group in the health-lifestyle division, which is where Mr Cruickshank was used to working, that the role was a senior role. You will see that there are various attributes of the job which are then listed and in the third dot point under the top heading you will see that it mentions that there was an excellent salary package on offer.

PN31

This was an advertisement that appeared on the internet after Mr Cruickshank had issued his proceedings but before the conciliation conference took place in the proceedings. Following on a date after the conciliation conference in the Commission, on 10 January 2007 a new job advertisement appeared on the internet by way of replacement from the previous one and you'll find that at exhibit I, which is the last page in tab 6. You will see that the difference of significance in the two is in relation to the salary package because now there is a salary figure nominated, not as a package but simply as a salary and the figure is $75,000 by way of salary. $75,000 is the salary which Mr Cruickshank was receiving as his salary per se at the time when he was terminated. The position is still described as a critical role and a senior position and that wording seems to be the same as in the earlier advertisement but the difference is that there's now a salary package nominated.

PN32

The significance of that emerged when the evidence was given in the hearing because it was said that one of the reasons why Mr Cruickshank was terminated was because he was being paid more than $75,000. He had a package which included the use of a motor vehicle and there was evidence from Mr Cruickshank that that was a tools of trade vehicle in the sense that he had to travel around these various sites to do the planning of the space but that was taken in by the company as part of an overall figure that they had to pay for him to do his job. They said that the overall figure was $101,000, I think it was and they were wanting to employ someone for $75,000. It was never made clear whether the person that they were going to employ for $75,000 would also have the use of a motor vehicle but that's the significance of the $75,000 figure appearing in the advertisement that followed the conciliation conference as opposed to no reference to it prior to that.

PN33

They are matters of evidence which were before the Commissioner and which we submit the Commissioner did not deal with in his decision.

PN34

JUSTICE GIUDICE: How much of this was put to Mr Stapleton?

PN35

MR BORENSTEIN: Mr Stapleton was cross-examined about the nature of the work, he was cross-examined about the reason for terminating, he was
cross-examined about the remuneration.

PN36

JUSTICE GIUDICE: You've not given a reference to that. I may be under a misconception. I thought Mr Stapleton was the one who made the decision. It that a wrong conclusion?

PN37

MR BORENSTEIN: He was treated as the person who made the decision in the hearing, your Honour, yes, that's correct.

PN38

JUSTICE GIUDICE: Presumably it was his evidence that was important about the reasons for the termination.

PN39

MR BORENSTEIN: Your Honour, evidence was adduced by the company through Mr Stapleton and your Honour is correct that obviously the decision-maker's evidence is critical. The point we make is that in circumstances such as this where you have a company which asserts a particular purpose or reason and the other party points to evidence which appears to be contradictory to that, that it requires a resolution of the contradiction.

PN40

JUSTICE GIUDICE: Yes, I fully accept that but I suppose my inquiry was really just, if there's an issue about the salary and you said it was unresolved as to the difference between the salary and the total package, if you like, and whether or not a car was necessary for the job, I'm just wondering whether those things were put to Mr Stapleton.

PN41

MR BORENSTEIN: Mr Stapleton was cross-examined about these various matters.

PN42

JUSTICE GIUDICE: He was.

PN43

MR BORENSTEIN: He was cross-examined about the advertisements, for example, at paragraphs 401 to 468 through the cross-examination. The point we're seeking to make by this, your Honour, is this, that there was evidence which brought into question some of the things that Mr Stapleton was saying. There was evidence about, for example, the change in the advertisements and Mr Stapleton said, and the other witness Ms Fordham, who were the only two witnesses called by the company, both said that they hadn't had an involvement in the actual placement of the external advertisements and that the internal advertisement had been placed by Mr Woolley. They disavowed any involvement in the actual advertisements and it was the advertisements that prompted the proposition that was being advanced by Mr Cruickshank that maybe everything wasn't as he had been told because the job was now being sought to be filled.

PN44

Our point is this, that it's all very well for Mr Stapleton to say, "Well, look, I was involved in the restructure and this is what I was trying to achieve," but if there's other evidence from within the company that seems to bring that into question and the company doesn't call those people to explain themselves, then it's a matter of conflicting evidence that the Commissioner needed to address because it went to, if not the central, a central argument that was being advanced on behalf of the worker.

PN45

Our complaint is that the Commissioner didn't grapple with the material and didn't resolve the conflict or give reasons or indicate that he had resolved the conflict when you read his decision and that's our complaint. As the bench would understand, the well understood purpose of reasons is that a party and an appellate tribunal can have an insight into the reasoning which went to support a particular conclusion and you can't find that in this decision.

PN46

JUSTICE GIUDICE: It's a fair implication, isn't it, that the Commissioner accepted what Mr Stapleton said, that he accepted the reasons he gave for the termination? I'm not saying that that can't be disturbed on appeal.

PN47

MR BORENSTEIN: One obviously infers that if he has found that there was a restructure and Mr Stapleton said we've terminated him because there's a restructure and he accepts that, then one assumes that he has accepted that. But that's not the end of the story and the authorities say that it's not sufficient, where's conflicting evidence, to simply say, "Well, I accept the evidence of this witness." In the folder of cases that we've handed up - sorry, we haven't handed up but we are about to hand up.

PN48

JUSTICE GIUDICE: Just to complete what I was saying about that, Mr Borenstein, I was really just trying to get at the nature of the question we have to answer, this appeal.

PN49

MR BORENSTEIN: Yes, I understand that.

PN50

JUSTICE GIUDICE: It must be that there's an error of some kind in the process which would lead us to conclude that the Commissioner, the implied conclusion he reached that Mr Stapleton was telling the truth about his motive or his reasons, must be disturbed because there's an error in the reason.

PN51

MR BORENSTEIN: Yes, and the errors that we point to, your Honour, are that he failed to deal with this evidence, and I will go to them, but he erred in his construction of the section or an application of the requirements of the section and that he failed to give adequate reasons.

PN52

At paragraph 9 on page 3 of the outline we've set out what we say are the two critical paragraphs in the decision which encapsulate the conclusion that the Commissioner came to. The first one is paragraph 22 in which the Commissioner says that:

PN53

In this matter I am satisfied that the applicant's termination resulted from the respondent's financial difficulties and the subsequent ...(reads)... to substantiate a sham or that the applicant was targeted inappropriately.

PN54

That's as close as one gets to a reference to the contrary material that was advanced on behalf of Mr Cruickshank and that's the totality, we would submit, of the reasoning that we see in the decision. Then at paragraph 31, the Commissioner goes on:

PN55

The termination was at least in part, if not fully for operational reasons. It would likely not have occurred on the evidence before me had the respondent's financial situation been better. A decision was taken to restructure the business which impacted on the applicant.

PN56

The next part of the outline is simply a reference to the function of the Full Bench on appeal and we don't need to delay by reading that but the reference to Coal and Allied and House v The King are well known to the Commission.

PN57

We then move on page 6 to the error which we say the Commissioner made in relation to the statutory test for determining whether the termination was for genuine operational reasons, where the termination was said to be due to a redundancy. We've given a reference in paragraph 14 to the explanatory memorandum which makes it clear that the employer must do more than simply make an assertion of operational reasons. The Commission has to be satisfied that the operational reasons relied upon were genuine before making an order that the application is not valid to the extent that it alleges unfair dismissal.

PN58

What we say is that where the termination is alleged to have arisen out of a redundancy situation which was caused by genuine operational reasons, it's not sufficient to merely conclude that the termination occurred because of genuine financial difficulties or restructuring. The focus has to be on the impact on the employee in question and we rely for that proposition on the decision of Watson SDP in Perry v Savills. Perry v Savills was a case where there was a restructure and functions of a particular position were rejigged and distributed among other various positions and then Ms Perry was offered one of those positions, didn't accept it and there was ultimately a termination

PN59

The general proposition of approach in paragraph 41 of the decision is set out at page 7 and we wish to rely upon that and if I could stop to just draw attention to it, his Honour stated:

PN60

The question remains as to whether the restructuring of Ms Perry's position resulted in a genuine operational reason for the termination ...(reads)... there were genuine operational reasons for the restructuring of her position.

PN61

The distinction is between the operational reasons for the restructure and the operational reasons for the actual termination. His Honour goes on:

PN62

While operational requirements may provide a reason for the restructuring, they do not necessarily provide a reason ...(reads)... termination is a logical response to those requirements.

PN63

In the Full Bench and Carter, and I note that Drake SDP was involved in that, there's a reference to this paragraph and to the final sentence of it, and it said that this question of logical response may be a matter where a sham situation is argued, but that wasn't a matter that arose in Carter and therefore the Full Bench didn't have to express any concluded view.

PN64

In this case we are advancing the proposition that there wasn't a genuine redundancy, unlike Carter where the place closed down. This is, as our researchers have been able to disclose, the first occasion when a Full Bench has had to look at a situation where there is an ongoing business and a position is said to be made redundant but the operation continues with other people doing the same or similar functions.

PN65

JUSTICE GIUDICE: That's the question, isn't it? I mean, isn't it the question where Mr Stapleton said it's a different job, or whatever he said, that that evidence was believed.

PN66

MR BORENSTEIN: It may be that one infers that the Commissioner believed it but there was evidence given by Mr Cruickshank to say that another man from the company had told him something directly to the opposite effect. Mr Stapleton said it's a very simple job and its below him. The other fellow said it's above him. The other fellow is a senior person in the HR establishment, he's named in the witness statement and he's not called to deny it.

PN67

SENIOR DEPUTY PRESIDENT DRAKE: $75,000 is a lot of money to pay for a very simple job.

PN68

MR BORENSTEIN: One might draw that inference.

PN69

SENIOR DEPUTY PRESIDENT DRAKE: That wasn't dealt with?

PN70

MR BORENSTEIN: No. None of this was analysed. The best we can do is what the learned President just put, which is to say, we've got the conclusion, we see Mr Stapleton has given evidence that's consistent with the conclusion, we must assume that the Commissioner accepted Mr Stapleton.

PN71

I was earlier going to take the court to a passage in a case which directly answers what your Honour is putting to me. It's at tab 5 of the folder of cases. It's an extract from a recent High Court decision of Waterways Authority v Fitzgibbon. It's reported in [2005] HCA 57; 221 ALR 402 and the passage that we've extracted for the Commission is on page 428 at paragraph 131 in the judgment of Hayne J. This judgment of Hayne J was agreed to by McHugh and Gummow JJ, Gleeson J gave a separate decision to the same effect. Does the Commission have tab 5, Waterways? It's the third page in the photocopy.

PN72

COMMISSIONER WHELAN: What paragraph?

PN73

MR BORENSTEIN: I'm sorry, it's paragraph 131. I'm told that you've got the whole case. It's paragraph 131. That's on page 428. Your Honours will see there Hayne J says:

PN74

The primary judge's reason stated his conclusion that the evidence of
Dr Trevithick was to be accepted ...(reads)... why Dr Trevithick's evidence was to be preferred to that of the other witnesses.

PN75

We say what Hayne J is saying there is that it's not sufficient to simply say "I prefer this witness's evidence" when there is conflicting evidence. It's necessary to resolve the conflict when you're dealing with a critical question in a case before the tribunal and that's what the Commissioner didn't do.

PN76

JUSTICE GIUDICE: I see that his Honour goes on to say that because of that error there would have to be a new trial.

PN77

MR BORENSTEIN: Yes, indeed.

PN78

JUSTICE GIUDICE: Is that the case here because of the questions of credibility involved?

PN79

MR BORENSTEIN: We would seek to make some submissions to the Commission by reference to some material which we've set out later on where we would suggest that the Commission might be in a position to exercise its powers to make a decision on the application.

PN80

JUSTICE GIUDICE: To say Mr Stapleton is not to be believed?

PN81

MR BORENSTEIN: Our learned friend will say that it ought to go back and we couldn't be heard to argue vigorously against that but we would at least want to draw the Commission's attention to what we say might be sufficient material for the Commission to be satisfied it could make a decision.

PN82

JUSTICE GIUDICE: I was speaking for myself. I would require some very compelling material to find that somebody couldn't be believed if I hadn't heard the cross-examination.

PN83

MR BORENSTEIN: We wouldn't be putting any submission of that sort to the Commission today really.

PN84

The point we were seeking to make by reference to Perry's case is that one needed to address the question of whether or not the genuine operational reasons really were connected to the particular termination as opposed to simply the redundancy of the position in question.

PN85

Another matter that we submit is important to keep in mind in the determination of this matter, and which is not apparent from the decision of the Commissioner, is the causal connection between - the establishment of a causal connection between the genuine operational reasons and the termination. We've given a reference, and I won't delay the Commission by going through it in detail, but we've given the Commission a reference to a passage from a judgment in the Federal Court of MUA v Geraldton Port Authority where Nicholson J explains the operation under the freedom of association provisions of the requirement for an operative reason. The Commission will be aware, perhaps, that under the freedom of association provisions certain conduct by employers and others is prohibited if it's done because of a reason or reasons that include a reason that are identified and they are matters such as union membership, holding a union office, being entitled to benefit of agreements and so on.

PN86

There was some debate when the 1996 legislation came in as to the extent of the causal connection between the prohibited reason and the conduct. In this passage his Honour makes clear by an analysis of the jurisprudence that preceded that, although under the current legislation, which is expressed in the same format as the statute we're looking at now, one doesn't have to identify a substantial reason. One nonetheless has to identify that there is an operative reason and that that requires a causal connection between the reason and what's happened so that you may, for example, putting a hypothesis forward to illustrate, you may have a genuine operational reason for the restructure but there may be altogether a different reason for picking a particular person to be the one who becomes made redundant, and that this connect would disqualify reliance on this defence.

PN87

JUSTICE GIUDICE: Isn't the problem with that that somewhere you cross over the line into examining whether the termination was harsh, unjust or unreasonable? I'm not suggesting this is easy, it's something I find conceptually quite difficult, I must say, but the statute says that if there's a genuine operational reason which is part of the reasons, then there's no jurisdiction and the clear implication of that is that in certain circumstances there'll be no examination of the merits. To me that does pose quite a difficult problem of how far you go in looking at the circumstances of the particular termination.

PN88

MR BORENSTEIN: A finding of genuineness has to involve a factual examination. A finding of operational reasons has to involve a factual examination and your Honour is perfectly correct. There may be in fact an overlap but you are making the finding not for the purpose of determining harsh, unjust or unreasonable, you're finding facts to inform the decision about whether it is a genuine operational reasons, whether it's an operational reason at all and the connection between that and the termination.

PN89

If, for example, you took a case where there was a restructure of a position but an individual was made redundant for a reason that was unconnected with the restructure, that might also go to the question of harsh, unjust or unreasonable but it also informs whether there is a genuine operational reason for that termination.

PN90

JUSTICE GIUDICE: Theoretically, you could have let's say a case where on looking at the financial position of the company there needed to be a reduction in labour costs, so let's say a 30 per cent reduction, just for an example, and let's say there were 100 people employed so that meant there were 30 people - this is very simplistic, but the point I'm coming to is, could you then examine every one of those 30 and say, well, in fact the reasons why that person was selected weren't operational reasons and there was no operational reason in each case. I mean, surely that's got to be the situation.

PN91

MR BORENSTEIN: Perhaps not in each case but the thought occurs to me as your Honour puts that example that, let's say, taking that hypothesis, that the intent is to reduce costs by 30 per cent and so there is a restructure and rejigging of functions and so on, the titles of the positions would remain the same but they rejig the functions and the descriptions and then they go to everybody and they say, "Look, we have to do this because otherwise we're going to go under and you're all going to have to take a 30 per cent pay cut. You're doing this work, you're going to have to take a 30 per cent pay cut because that's the only way we can survive."

PN92

They do that for 29 out of the 30, then they come to one they don't like and that person doesn't get the option of taking the 30 per cent pay cut. That person is told, "The position you previously held no longer exists, we've rejigged it, it's a different position and you're being made redundant because the original position you had no longer exists." It's a hypothetical but it illustrates that in order to determine whether that person, the 30th person has been terminated for genuine operational reasons might involve an examination of the particular circumstances that obtained in that person's situation as compared to others.

PN93

I suppose what it illustrates is that there will inevitably come up a wide range of factual situations and it may - one could go cross-eyed trying to work out in advance how one is going to deal with hypotheticals, but at the end of the day there's no prohibition, we would submit, on the Commission going into the factual situation to determine whether the criteria which the statute does identify at this level, that is genuine operational reasons for the termination, whether as a matter of fact that's happened.

PN94

Insofar as those findings might also be relevant to other matters, so be it, but the Commission can't be prevented from examining all the relevant material that goes to help it decide the facts that it has to decide under this section. I can't think with respect, your Honour, any way round that, otherwise the Commission would be not performing its function under the section if it didn't do that.

PN95

SENIOR DEPUTY PRESIDENT DRAKE: In Carter you didn't have to do that because the cinema was gone and in your example if the 30 people were all in the one division and the whole division went, you wouldn't have to do that.

PN96

MR BORENSTEIN: That's right.

PN97

SENIOR DEPUTY PRESIDENT DRAKE: But you say it arises because it's a section that applies to a particular - it has to be a reason for the particular employee. ..... division, it applies.

PN98

MR BORENSTEIN: Yes. Carter in a factual sense was probably a much more simple case and perhaps a more unusual case of the sort that one would expect to arise in these sort of situations. As I said, we weren't able to find any other decision which had actually had to grapple with this provision in the context of an ongoing business and a rejigging of jobs, which is a bit more complicated to resolve.

PN99

JUSTICE GIUDICE: Do you refer to Carter anywhere in your opening, recent Full Bench authority?

PN100

MR BORENSTEIN: We have referred to Carter but we refer to Carter for the proposition which we don't disagree with, which is that the use of the phrase operational reasons in this legislation as compared to genuine operational requirements under the previous legislation means that it's not necessary that the genuine operational reasons create a requirement for a particular termination or an unavoidable termination. It's sufficient if - - -

PN101

COMMISSIONER WHELAN: It's a logical response.

PN102

MR BORENSTEIN: Yes, and the Commission will find that at paragraph 28 of Carter which is at tab 1 of the book that we've handed up.

PN103

JUSTICE GIUDICE: Yes, I see.

PN104

MR BORENSTEIN: Beyond that, the facts in Carter were so different that the Full Bench didn't have to grapple with a lot of these issues and really,
paragraph 28 encapsulates the view that the Full Bench took of how the requirements of this section are to operate.

PN105

JUSTICE GIUDICE: Do you have any quarrel with paragraph 28?

PN106

MR BORENSTEIN: No. We accept that paragraph 28 gives meaning to the change in the terminology between the previous statute and this statute.

PN107

COMMISSIONER WHELAN: Mr Borenstein, if the redundancy was not genuine in the sense that the functions continue to exist and the job was still there to be done, could it nevertheless be a genuine operational reason that in order to save money they wanted to employ somebody who was cheaper to do the same job?

PN108

MR BORENSTEIN: We would submit that that's not the intention of the legislation. If the purpose of the exercise is simply to be able to dispose of one employee and employ another one at a lower rate, we would submit that you ought not to find that that's the intention of the legislation. It has to be a genuine restructuring situation in which the reduction in salary is a consequence rather than a purpose.

PN109

COMMISSIONER WHELAN: A purpose, yes, okay.

PN110

JUSTICE GIUDICE: The difficulty with this is that if the Commission were able to take into account whether there was a genuine operational reason as part of the overall facts of the case, it would be a quite different task because the degree of artificiality in deciding on this factor in order to establish whether or not there is jurisdiction, I think we might all be grappling with it.

PN111

MR BORENSTEIN: Your Honour is suggesting that if this were a factor to be taken into account as part of the harsh, unjust or unreasonableness.

PN112

JUSTICE GIUDICE: Yes, if it were part of the - - -

PN113

MR BORENSTEIN: Historically that was the case .....

PN114

JUSTICE GIUDICE: Of course, what you're faced with in these cases is you might have a full trial on the facts in order to establish whether or not there's a jurisdictional basis to proceed. Presumably you then go through the evidence again.

PN115

MR BORENSTEIN: Yes, and that throws up all sorts of issues about what you give to the earlier findings.

PN116

JUSTICE GIUDICE: Exactly, yes. Anyway, ours is not to reason why.

PN117

MR BORENSTEIN: That's the statute with which we've been blessed and we've got to make the best of it. Just coming back to the Commissioner's question, we advance the construction which I put to you, or the position which I put to you because if it were otherwise this would be a recipe for an employer saying that, "I have made an operational decision, a genuine operational decision to cut my salary costs and everybody has got to take a salary cut and if they don't take a salary cut, they're terminated and I'll employ someone else on a lower salary." That can't have been envisaged when it's talking about a genuine operational reason and the definition of genuine operational reason in subsection (9). It would seem to raise it to a higher level than that and we would urge the Commission to take care in any decision that it does give not to leave open that loophole of people being able to say "We've made a genuine operational reason to cut wage costs and that's it." It needs to be something more than that, in our respectful submission.

PN118

JUSTICE GIUDICE: What's the basis for that? What's the basis for saying there's needs to be something more than saving salary costs?

PN119

MR BORENSTEIN: Because the definition in subsection (9) is in terms which we say wouldn't support such a narrow construction and we've also made some submissions commencing on page 15 at paragraph 32 on this subject.
Subsection (9) defines operational reasons as economic, technological, structural or similar in nature relating to the employer's undertaking, et cetera. We would submit that the genus of those descriptors exclude a decision simply to make a decision which ones describes as a genuine operational reason that all wages are to be reduced by 20 per cent or something of that sort.

PN120

JUSTICE GIUDICE: Wouldn't that be economic?

PN121

MR BORENSTEIN: On one reading it might be but we would submit that when you read the various descriptors together economic should be read as a decision which goes to the overall financial structure of the organisation. In one sense it occurred to me that it's a curious word to use if one is simply going to be able to focus on a cost-cutting exercise and there's no reference to a financial reason.

PN122

JUSTICE GIUDICE: Yes, it might be a reference more to general economic conditions.

PN123

MR BORENSTEIN: Yes, that's right, rather than financial and it's a curious omission if that were to be allowed. It's for that reason, your Honour, that we say that it ought not to be construed in a way that permits that sort of an outcome.

PN124

We have made the submission that it was necessary for the Commissioner to determine the facts and the law that went to this particular question of whether Mr Cruickshank's termination was in fact a consequence of a genuine operational reason. We have made some submissions at page 10 to the effect that on the material that was before the Commissioner that the position was not in fact redundant. We've given a reference and set out a passage from the judgment of Ryan J in Jones' case on the question of when a redundancy arises and the Commission will see there's an extract from Jones' case in the folder but the passage in question is set out and it will be seen that his Honour in the middle of that paragraph says:

PN125

It's within the employer's prerogative to rearrange the organisation's structure by breaking up the collection of functions ...(reads)... Adelaide Milk Cooperative case which is the classic statement by Bray CJ.

PN126

Our submission is that even on the evidence which the company advanced, there were significant functions to be performed and functions in the area in which Mr Cruickshank previously worked and functions of the kind which Mr Cruickshank previously did, though Mr Stapleton did say that there were various reporting difference and so on. As the Senior Deputy President has pointed out, there was still a significant salary figure attached to the position.

PN127

Insofar as there was a dispute between the parties on this point, as to the extent to which the position had been varied and whether it had been varied to such a degree that in truth the former position was redundant and was no longer required to be done, there are no explicit findings from the Commissioner on that point again, a critical issue which the Commissioner ought to have grappled with, with respect, and given a reasoned decision about and did not do so. It's for that reason that we submit that there is a further error in the Commissioner's deciding of this case. We've set out at paragraph 25 the passage which I've already read to the Commission from Waterways and we rely upon that and we make a submission in paragraph 26 about the Commissioner's obligation to grapple with the evidence about the critical issues and to provide a decision which exposes his reasoning on those matters.

PN128

At paragraph 27 we've given the Commission a reference to the Full Court's judgment in Dornan v Riordan which is a case about adequacy of reasons and in that decision at the pages we've given, the Full Court identifies the requirement and the extent of the requirement to give reasons and they correspond with the approach which Hayne J took in Waterways. The interesting thing in Dornan v Riordan was that the Full Court treated the failure to give reasons as voiding the decision below ab initio and sent it back for rehearing.

PN129

I think I've already made the submission that, apart from the other matters, the Commissioner has also not addressed the question posed in Perry v Savills by Watson SDP about the connection between the genuine operational reason and the actual termination as opposed to simply the connection between the reason and the restructuring and again we say that that's a flaw in the decision which invalidates it.

PN130

We've given a reference to some evidence from Mr Stapleton at paragraph 369 to 372 of the transcript in which it was put by the advocate to Mr Stapleton as to why he didn't talk to Mr Cruickshank about taking the new position at the reduced salary. He's asked:

PN131

Why didn't you talk to him about perhaps talking about his salary package and retaining his skills?

PN132

Mr Stapleton says:

PN133

Because I didn't talk to him. Why didn't you?---I didn't deem that it was the level again of the experience of Mr Cruickshank ...(reads)... could have but didn't take the opportunity.

PN134

This is Mr Stapleton's evidence about, "Okay, you've got a job which is not grossly dissimilar to what he was doing before, he's had the experience in the job with the company" et cetera, et cetera, "why didn't you ask him whether he's prepared to do the job for the lower wage" and that was the response.

PN135

JUSTICE GIUDICE: Have you got a reference to that in the outline?

PN136

MR BORENSTEIN: Yes, we do, it's at paragraph 28 at the end of the paragraph.

PN137

The point of raising that is simply to illustrate that this is evidence which goes to this question about whether or not genuine operational reasons were responsible for the actual termination of Mr Stapleton(sic) irrespective of the restructure. There was evidence and it ought to have been dealt with. It was led and it wasn't dealt with and it means that we're speculating about the reason why the Commissioner came to the conclusion that he did and that's unsatisfactory as a matter of law.

PN138

We have set out in paragraph 29 then a number of matters which were before the Commission which don't require any determination of credibility but which we say, when taken together, illustrate that in truth there was not a redundancy in this case and that the company has in the light of these matters failed to satisfy to the relevant degree the test to establish that there were genuine operational reasons.

PN139

The points that we draw attention to are the internal advertisement for the position, which we've taken the Commission to, which was put out shortly after he was terminated; the analysis which Mr Cruickshank undertook of the job descriptions in the internal advertisement and his previous job description; the fact that the line manager who placed the advertisement, Mr Woolley, was not called to give evidence to explain that position, even though it was put in issue clearly in the witness statement which Mr Cruickshank filed and that his failure to be called warrants a Jones v Dunkel inference which the Commissioner didn't address, but which this Full Bench could address.

PN140

Then there was the external advertisement for the position of the space planner which was described as a senior position with an excellent salary package. There was no evidence called by the company from the person who placed the advertisement. The two witnesses called both disavowed any involvement in the placing of the advertisement, again a Jones v Dunkel inference which should have arisen because this was an issue that was put in the material before the hearing; the reposting of the advertisement in January with a modified salary package, again no evidence led from the witness who might within the company have explained how that came about; the concession by Ms Fordham, one of the witnesses who was called, that the description of the position in the advertisement as a senior position was inconsistent with the assertion that Mr Cruickshank's position was made redundant and that's to be found at paragraph 197 of the transcript.

PN141

In paragraph (g) at the top of page 14 we've given the transcript references to the passages where Stapleton and Fordham disavowed any understanding or involvement in the external advertisements. The external advertisement was put up by a recruitment agency briefed by a human resources manager at Priceline, and that person wasn't called and the transcript references to that are in
paragraph (h) and again we have a Jones v Dunkel situation.

PN142

Then finally, following the internal advertisement, as I said earlier, Mr Meiliunaus from the company told Mr Cruickshank that he was not sufficiently skilled for the position. Then later on Mr Stapleton gave evidence to say that he was overskilled for the position and Mr Cruickshank's evidence about the conversation with
Mr Meiliunaus was not challenged in cross-examination and Mr Meiliunaus was not called as a witness to disavow what was said, again a Jones v Dunkel inference to be drawn that had he given evidence he would not have assisted Priceline's case.

PN143

In those circumstances we would submit that the evidence, leaving aside any questions of credibility but just looking at the objective aspects of the evidence, raises a very strong inference against the argument which was being advanced by Priceline and at the very least would preclude Priceline from claiming that it has discharged the burden that it has to establish on an evidentiary basis that there were genuine operational reasons for the termination.

PN144

To the extent that there may have been some change in the function, we would submit that the evidence demonstrates that the change was not of such a far reaching nature that this was a different job altogether, such that one could say that the former job was truly no longer required to be done and therefore redundant, leaving aside the question of whether Mr Cruickshank should consequently have been dismissed in any event. The contradictory evidence of Meiliunaus and Stapleton go to that question of whether or not there were genuine operational reasons for not keeping Mr Cruickshank in employment.

PN145

As I said earlier, at page 15 we've given some references to the explanatory material of the legislation in support of the proposition which we've put that one ought not to treat the requirement for genuine operational reasons as allowing simply for a reduction in salaries of workers under that rubric, that more must be required having regard to the definition in 643(9) and also looking at the statement in the second reading speech of the Minister where the indication is that the prohibition is on bringing claims where the employer genuinely no longer requires the job to be done, and there's an extract also from the explanatory memorandum.

PN146

JUSTICE GIUDICE: If you accept that it was permissible to terminate somebody's employment in order to make a direct salary saving by simply
re-employing somebody, there would be no end to it.

PN147

MR BORENSTEIN: That's the point.

PN148

JUSTICE GIUDICE: The exclusion would have no - - -

PN149

MR BORENSTEIN: It would defeat the whole operation of the rest of the provisions.

PN150

JUSTICE GIUDICE: It must be right.

PN151

MR BORENSTEIN: Yes. It couldn't have been intended in this sort of indirect way to have that effect.

PN152

JUSTICE GIUDICE: That really brings us back to the question of whether there was a genuine operational reason in this case and to Mr Stapleton's evidence, I suspect.

PN153

MR BORENSTEIN: Except that, the point that we started off with, your
Honour - - -

PN154

JUSTICE GIUDICE: Yes, in all the circumstances, we've got to take all the evidence into account.

PN155

MR BORENSTEIN: That's right.

PN156

JUSTICE GIUDICE: But then the question is ultimately do you accept his evidence or not, in light of all those things you've referred us to.

PN157

MR BORENSTEIN: Yes, that's right - sorry, I have to retract that from you. At this level, what the Full Bench is doing is looking at the decision that the Commissioner made.

PN158

JUSTICE GIUDICE: Yes, I didn't state that correctly.

PN159

MR BORENSTEIN: One has to examine his decision to see whether he in fact has done that. As we say, it's not apparent. If the Commission here were proposing to undertake to determine the matter again, then what your Honour puts is correct and if the Commission were to follow that course, then we would point to the matters we identified as creating significant inferences that go against the acceptance of Mr Stapleton's evidence.

PN160

That finally brings us to the question of the need for leave, obviously.

PN161

JUSTICE GIUDICE: Mr Borenstein, I think if we were persuaded there was an error, this is a case in which we would give leave, given the importance of the issue.

PN162

MR BORENSTEIN: Well then, I don't need to take up the Bench's time any further. Unless there are any other matters you wish to raise with me, they're our submissions.

PN163

JUSTICE GIUDICE: Yes, Ms Duffy.

PN164

MS DUFFY: Sorry, your Honour, if I might just have a minute?

PN165

JUSTICE GIUDICE: Yes, of course.

PN166

MS DUFFY: Your Honour, I have prepared a written outline of submissions as well, which I've provided to my friends now, and I might provide a copy of that to the Bench. Your Honour, I do intend to deal with most of those matters, at least briefly by way of submission, although given what your Honour has said, what the Bench has indicated about leave to appeal again I might just skip over that.

PN167

JUSTICE GIUDICE: Well, I didn't mean to shut you out from making any other submission about it, Ms Duffy, but given the relative novelty of the legislation that was, I think, the view we certainly take as a preliminary view, that if there's error then it's the sort of case that ought to be reviewed. Did you wish to argue against that proposition?

PN168

MS DUFFY: I understand to some extent, your Honour, it would be very hard to argue strenuously against that. We, of course, say there is no error and that's the reason that leave to appeal shouldn't be granted. But, of course, the other issue is that a Full Bench in the Village Cinemas case in my submission has considered this issue adequately, that is really the construction and the meaning of the phrase genuine operational reasons as it affect's the Commission's discretion under the relevant statutory provision. And it's my submission that there are no new issues raised in this case that would warrant further Full Bench consideration of that issue.

PN169

JUSTICE GIUDICE: Thank you.

PN170

MS DUFFY: Your Honour, I think we're in agreement of course on the relevant principles in relation to an appeal of this nature. I won't go through those. Of course, where we differ is how the Full Bench should apply those principles. But you'll see that in our written submissions I've certainly set out the relevant passages from the Coal and Allied decision and House v R, and I think my learned friend took you to that briefly as well.

PN171

Your Honour, our submissions have really followed the structure of the notice of appeal or, rather, the amended notice of appeal, so they are somewhat differently structured to those put forward on behalf of the appellant, but they do essentially cover the same issues so I'll try to deal with the issues that really need to be agitated today before you. Our primary submission of course, your Honour and other members of the Bench, is that Commissioner Eames has not made any error that would warrant any intervention from the Full Bench in relation to this matter.

PN172

And I think, your Honour, certainly ground one of the appeal puts that very broadly in the sense that it's alleged that Commissioner Eames erred in fact in law in finding that the reason for the termination of the applicant's employment was at least in part for operational reasons. So it's put very broadly, your Honour, but certainly my intention today is to stick to the matters that have been raised more specifically by my friend.

PN173

Now, Mr Borenstein has already taken you to some of the passages in the Commissioner's decision. That's at tab 2, of course, of the Appeal Book that's been filed, and really what I wanted to draw your attention to though is that we say that the necessary link between the operational reasons advanced by the employer and the termination of the applicant's employment, that is, specifically the applicant's employment, is apparent, and that's evident if you look carefully at the Commissioner's decision.

PN174

In paragraph 22 of the decision the Commissioner found that the applicant's termination resulted from the respondent's financial difficulties and the subsequent decision to reorganise its structure. That's in paragraph 8 of our submissions, your Honour, it's quoted there directly. And on that basis as least part of its decision to terminate the applicant was for a genuine operational reason. Now, later on in the decision at paragraph 31 the Commissioner found that a decision was taken to restructure the business which impacted on the applicant.

PN175

Now, it's my submission that the link between the restructuring and the impact on the applicant's specific position is clear and that there was an evidentiary basis for those findings before the Commissioner. He has set those out, has set out much of that evidence at paragraph 7 through to 12 of the decision. There was also evidence given of the general nature of the restructure and the reasons for that by Ms Fordham at paragraphs 5 to 7 of her witness statement, which I think is behind tab 10 in the Appeal Book.

PN176

JUSTICE GIUDICE: Yes.

PN177

MS DUFFY: And further at transcript at paragraphs 59 to 62 that evidence was also confirmed in the evidence of Mr Stapleton. I refer particularly to paragraphs 6 to 12 and 14 to 19 of his first witness statement, which I think is at tab 8, and paragraphs 8 to 10 of his supplementary witness statement, which dealt specifically with the position that the applicant had held within the company. You will see in the paragraphs that I refer to of Commissioner Eames's decision, that is 7 through 12, that the Commissioner clearly has gone through the evidence, has taken into account that the company suffered quite a large financial loss that led to the appointment of a new CEO, a review of its operations, a restructure of the entire business. I'm summarising the evidence here, your Honour.

PN178

And Ms Fordham's evidence particularly went to the issue that the instruction was to reduce operating costs by some $10 million, and approximately half of that had to be in the area of employment. No part of the business was left untouched. There was a review of the entire operation and 32 redundancies across the organisation, but that that operational reason trickled all the way down to affect the employment of the applicant. And evidence was given more specifically about the restructure within the retail and merchandising division and how that impacted on the positions of the space planners.

PN179

SENIOR DEPUTY PRESIDENT DRAKE: Ms Duffy, in Carter the, as I recall it, emphasis was on the reasons, the operational reasons of the employer leading to the termination of the particular employee of the applicant. In this case you have the burden being the employers in putting the objection, no matter what reasons may have been raised in explanation by the applicant. The employer puts up a case that there's a decrease in money available, therefore there has to be a decrease in jobs. That level of job loss is identified, money saved to be identified, and then you get down to the level of applying that decision.

PN180

Now, when you get down to the level of applying that decision you still have to have a reason for the particular employee as a reason of termination for that employee, not for a space saver or an amount of money from space saving as a category. You have to have a reason for the termination as a result of the operational reasons of the employer for that employee. Some trouble finding that in the evidence before the Commissioner. I mean, you add a category, you can say a more expensive space saver might have to go. But there are two expensive, in your argument, space savers, and you might even have a reason - I just don't see the - - -

PN181

MS DUFFY: But there were, your Honour, and they both went. That was really - I think the evidence you're looking for is in - - -

PN182

SENIOR DEPUTY PRESIDENT DRAKE: But you kept an expensive space saver, or you intend to fill a position for an expensive - - -

PN183

MS DUFFY: That's not the evidence, your Honour. I think the reference directly to the evidence you're looking for is in Mr Stapleton's first statement. I can probably take your Honour to that part.

PN184

SENIOR DEPUTY PRESIDENT DRAKE: If you look at the material though that Mr Borenstein has referred to, you have an advertisement for somebody on $75,000 a year, which is the base salary of the applicant as I understand the material.

PN185

MS DUFFY: I'm sorry, your Honour, I missed a little bit of that with the outside noise.

PN186

SENIOR DEPUTY PRESIDENT DRAKE: I'm sorry. The advertisement - - -

PN187

MS DUFFY: I understand, and I am coming to deal with the advertisement because, again - - -

PN188

SENIOR DEPUTY PRESIDENT DRAKE: At the commencement I think the evidence I'd like to hear you take us to is the material that supports the decision in relation to the particular employee.

PN189

MS DUFFY: Your Honour, if I might do that now. I hope I'm correct, but I believe that that evidence is obtained towards the end of the first statement of Mr Stapleton which is behind tab 8 of the Appeal Book. Now, your Honour, it's probably about halfway through the second page of that statement I think where we leave the more general issues facing the company and lead specifically to the retail business unit. Now, at paragraph 10 Mr Stapleton indicates the effect on the actual structure of the company. There were four divisions that were reduced to two, and then the effect that that had in terms of effectively displacing a lot of the employees that had to be then re-accommodated or not within the new business structure.

PN190

Now, he comes to the role of space planners specifically over the page, and probably beginning too at paragraph 14. Certainly it's true that only two space planners were required, but they were both at a much lower level of responsible and remuneration than the positions that had previously existed. Mr Stapleton continues there to the bottom of that page to detail some of the considerations that they took into account in making that decision. But, your Honour, the real issue was that two of the space planners, one of whom was the applicant, and both of whom were made redundant, were in positions that involved a significantly higher level of responsibility and remuneration than the company required.

PN191

And that's where we really get to the nub of the question that was before Commissioner Eames, and that is really whether the position was a different one. We say that the evidence was very clear that it was. That evidence to at least some extent was uncontested. Now, we do need to, or we certainly did need to explain how the advertisements came into being before Commissioner Eames. There's certainly something I need to say about that today. But to answer what I think you're putting to me, Senior Deputy President, the real issue here was, we're left with two space planning positions, both of which are at a significantly lower level in terms of responsibility and remuneration than the positions that had previously existed.

PN192

COMMISSIONER WHELAN: And you say that the - I understand the bit about the space planner who was kept - and it's not clear from the evidence when it says they were earning $67,580, or whether that was inclusive of superannuation or not. But I understand the bit where you say that the others were earning more money. But is it paragraphs 16 and 17 of the statement to which you rely upon to say there was a significantly lower level of responsibility?

PN193

MS DUFFY: Those paragraphs, Commissioner, and Mr Stapleton returned to that issue in his supplementary statement which was filed after we'd received the material from the applicant in the original proceedings. Particularly I refer to - - -

PN194

COMMISSIONER WHELAN: Paragraph 9?

PN195

MS DUFFY: Yes, 8 through to 10 really, Commissioner. But particularly, you're right, paragraph 9 indicates what we say is the major difference between the positions. And it's something that is not necessarily reflected in a situation where you just line up a list of tasks. And we say that's what exhibit G, which was attached to the applicant's witness statement was, it was essentially a list of tasks which in no way could reflect the responsibility and the level at which those tasks were performed. If I might - that was dealt with in evidence, Commissioner. It was a matter that I intended to go to because it was put to both of the witnesses for the respondent.

PN196

But if I could perhaps use the analogy of a skills based classification structure where you've just got lists of tasks, it doesn't necessarily reflect the responsibility of the position, and it's often as you go up the chain in such a structure that additional references to responsibility are made, whereas the tasks that are set under that are often very similar when they're described in just a shorthand way.

PN197

Now, at paragraph 10 of my written submissions we address the issue that the Commissioner certainly was properly cognisant of the way in which the applicant's case was being put. In paragraph 22 of the decision Commissioner Eames said:

PN198

I am not satisfied there is any evidence to substantiate a sham or that the applicant was targeted inappropriately.

PN199

Now, the way that the case was put by the applicant's representative at first instance was that the operational reason was not genuine for two reasons, the first being that there was some sort of internal personal rivalries that led to the applicant being unfairly targeted, and the second was because the applicant believed that the position still existed and needed to be filled.

PN200

Now, it's my submission that in making that finding at paragraph 22 Commissioner Eames has clearly found in favour of the respondent in terms of the evidence on both of those points. The respondent's case was that there was simply no evidence of any sort of inappropriate targeting. I think that's not something that the applicant makes much of on the appeal and it's not something that's necessary for me to take you to, but we have indicated the evidence that supports that evidence at paragraph 11 of the written submissions.

PN201

Now, the way in which it was argued that the termination was not for genuine operational reasons, or the other way I should say, is that it amounted to a sham redundancy because somebody else was the employer. The applicant in this case was made redundant and then somebody else was going to fill that position and do, certainly essentially the same duties. Now, that's an issue of course that, given all the circumstances of a particular case, may go to whether a particular redundancy or a termination is in fact genuine.

PN202

But we say that that's not an issue that really need to trouble the Full Bench today because of the finding of Commissioner Eames that there was no such sham. And we say that that is a finding that the Commissioner was entitled to make taking into account all of the evidence in that regard. At paragraph 14 I've given you the references that we've already gone to in terms of Mr Stapleton's supplementary statement, that is paragraphs 8 to 10, which we say clearly explain how the position was different.

PN203

The other thing that shouldn't be overlooked is that Ms Fordham gave evidence - and the reference is there at paragraph 77 of the transcript that if an when the position was to be filled it would be filled at a significantly lower total employment cost. Now, there was some confusion I think surrounding whether it was salary or employment cost, but certainly the respondent's position is that if the position is filled it will be at nothing like a $75,000 salary. That in fact is probably in excess of the total employment cost that the respondent intends for the position.

PN204

JUSTICE GIUDICE: That statement at paragraph 77, was there cross-examination of that statement? You can come back to it if you like.

PN205

MS DUFFY: Yes. No, there was, your Honour. I think that's at approximately paragraph 255. Again under cross-examination Ms Fordham - actually it's in re-examination I think, your Honour, that reference. I'm not sure if I can provide you with a reference in terms of cross-examination.

PN206

COMMISSIONER WHELAN: There were questions asked of Mr Stapleton in relation to that issue I think.

PN207

MS DUFFY: That's right, your Honour. I think it's touched on briefly at paragraph 212. But probably the distinction that I'm trying to make in terms of the distinction between salary and total employment cost is not clear.

PN208

SENIOR DEPUTY PRESIDENT DRAKE: At 212 that's cross-examination of Mr Stapleton?

PN209

MS DUFFY: No, I think it's Ms Fordham actually, your Honour.

PN210

COMMISSIONER WHELAN: Where it says there was a position drawn into the structure which was for a space planner valued at $75,000.

PN211

MS DUFFY: That's right, Commissioner, that's the passage to which I was referring.

PN212

SENIOR DEPUTY PRESIDENT DRAKE: Then why do you say that the position was valued at a great deal less than the $75,000?

PN213

MS DUFFY: The salary component, your Honour, that's the point. And I'm coming to the external advertisements. But much was made of the fact that Mr Cruickshank's salary component, or cash component of his salary rather was, I think, about $75,000, and there was no dispute about that. But he was provided also with a motor car, the motor vehicle and some other benefits that took his package up to approximately, I think, $101,000, and again I don't think there was any dispute between the parties in relation to that.

PN214

The point I'm making, your Honour, is there is a significant difference between a salary of $75,000 and a total employment cost of, say around the same figure. And I think Ms Fordham actually put it a little lower than that, 65 to 70 was her evidence at those passages I've just taken you to.

PN215

SENIOR DEPUTY PRESIDENT DRAKE: And what do you say an employment cost is?

PN216

MS DUFFY: That's factoring in something like superannuation, any other components that may not be salary, your Honour.

PN217

SENIOR DEPUTY PRESIDENT DRAKE: The salary package that was identified in those documents Mr Borenstein took us to were 75.

PN218

MS DUFFY: Well, your Honour, I'm coming to that.

PN219

SENIOR DEPUTY PRESIDENT DRAKE: I'm sorry, all right.

PN220

MS DUFFY: Yes. The external advertisement, we say that that's just simply not the case, and that was something that was advertised in that way outside of the company's control or authorisation. The company's evidence is clear there is just no way that this position will be offered or filled at a salary of $75,000.

PN221

JUSTICE GIUDICE: It seems as though they're having trouble attracting suitable applicants.

PN222

MS DUFFY: Well, your Honour, the full story as to what's happened with the position is disclosed on the evidence that was before the Commission, without going to far into that. And look, I do want to say something about those advertisements. We acknowledge that the position was advertised internally, I think late in November. It was Ms Fordham's evidence that that was advertised hurriedly and without enough thought. It was an internal - you've got to appreciate there were 32 people had just gone from the company, there are different divisions that have been rejigged and different competing priorities within those divisions.

PN223

That advertisement was essentially withdrawn. It was never filled. Ms Fordham's evidence was that she couldn't recall that there were any internal applicants. She thought that there weren't.

PN224

COMMISSIONER WHELAN: There may not have been anyone qualified apart from the person who was already there.

PN225

MS DUFFY: Well, that's right, Commissioner. Well, by this stage - - -

PN226

COMMISSIONER WHELAN: There was one person still there, yes.

PN227

MS DUFFY: That's right, your Honour, that is right, there still was a space planner. The advertisements that appeared externally on the internet and those that Mr Cruickshank's representatives have drawn your attention to were not authorised by the company. Ms Fordham's evidence was she had not seen those advertisements and had no knowledge of them until the applicant's materials were filed in this case, which was some time after those advertisements had appeared. At the time that she gave her evidence to Commissioner Eames she was still really trying to get an understanding of how that had happened.

PN228

And I think to some extent Mr Borenstein has taken you to that evidence. But the evidence was not that somebody from the company had authorised those advertisements. The evidence was that nobody had authorised those advertisements. The recruitment agency, having been given a brief sometime earlier in the piece had essentially gone off on a frolic of their own, and certainly the company had never intended that the position would be advertised at anything like a salary of $75,000.

PN229

JUSTICE GIUDICE: But if it were a package of $75,000, or whatever the expression is, that would be consistent with the evidence that Ms Fordham gave wouldn't it?

PN230

MS DUFFY: It could be, your Honour. I think - - -

PN231

COMMISSIONER WHELAN: I think it's salary up to 75.

PN232

MS DUFFY: I think that was the problem, and that was certainly something that was emphasised by the applicant's representative at first instance. I think if I understand my learned friend's arguments properly today, again that point is made. But the first point we make is that advertisement was not authorised by the company. It's still a bit of a mystery to the respondent as to how that appeared.

PN233

COMMISSIONER WHELAN: How did they get the information if somebody from the company didn't give it to them?

PN234

MS DUFFY: I think there's no doubt that - - -

PN235

COMMISSIONER WHELAN: November and then January, I mean, there's a gap here as to when these advertisements appeared, and there's an initial advertisement that says one thing, and then there's another one that says a very precise figure. Somebody must have told them that.

PN236

MS DUFFY: Certainly, your Honour, somebody at some point we would think, or I think Ms Fordham's evidence was that she thought at about the time the internal advertisement had gone out, had briefed a recruitment company. But the subsequent events, the company at that point made the decision not to fill the position, and I think, again without misrepresenting the evidence, it was Ms Fordham's evidence that there was a further financial concern or a bit of a downturn. The Christmas period was certainly not as profitable for the company as they had hoped, and the decision was made to not fill that position. And it still hadn't - - -

PN237

COMMISSIONER WHELAN: And then by 8 January another ad appeared with $75,000 in it.

PN238

MS DUFFY: Yes, your Honour, but with no knowledge of the company. Ms Fordham's evidence was she did not know until she saw that material attached to the applicant's statement. And I think it may not be necessary for me to take you to all of the references, but there's certainly a number of points in the transcript where Ms Fordham deals with this issue. Firstly, the relevant passage begins at about paragraph 73 of the transcript.

PN239

SENIOR DEPUTY PRESIDENT DRAKE: These are not made as a result by the Commissioner though, Ms Duffy.

PN240

MS DUFFY: I'm sorry, your Honour?

PN241

SENIOR DEPUTY PRESIDENT DRAKE: These are not matters that the Commissioner deals with in his decision and resolved in any way.

PN242

MS DUFFY: No, your Honour.

PN243

SENIOR DEPUTY PRESIDENT DRAKE: We don't know what his conclusion is about those matters or how he resolved them and formed a view about how he came to a decision on resolving those matters of evidence.

PN244

MS DUFFY: I think that's right, your Honour, in terms of there not being an express finding on this particular point. Again this is a matter that I'm coming to in terms of whether the reasons are adequate. But it's my submission that the Commissioner need not make an express finding on every factual issue that leads him to the ultimate or the relevant conclusion. It's my submission that Commissioner Eames certainly understood the case that was being put by the applicant. He just did not accept the evidence and he found in favour of the respondent in that regard.

PN245

And if I could draw your attention particularly to, I think it's paragraphs 14 through 16 of the Commissioner's decision, he clearly understood the way in which the applicant's case was put. But then later in the decision - and I've tried to explain the reason that he has referred to it in the way he did at paragraph 22, it's because of the way the case was put - he has rejected the applicant's submission in effect and the evidence that was led by the applicant that the termination was a sham. And it's my submission that that certainly encompasses these issues. But I will return to that question, your Honour, in terms of the necessary findings that the Commissioner needed to make.

PN246

I think without going to all of those passages in transcript I must just - because they're not referred to in the outline. Ms Fordham's evidence in relation to the advertisements I think begins at about paragraph 73 of the transcript, that's in her evidence-in-chief, through to about paragraph 76. Again those issues are dealt with at, I think, about paragraph 250 onwards, particularly in relation to the external advertisements, and I think that goes right through then till the end of her evidence and the paragraph to which Mr Borenstein has already referred, that is paragraph 258, where she clearly states that when she saw them in Mr Cruickshank's submissions she got in contact with the agency, and they were placed wholly and solely by the agency through their own with a view to doing a search of the marketplace for us. That's quoting her evidence at that paragraph.

PN247

COMMISSIONER WHELAN: She thinks that that's what happened. She just says that she wasn't aware of the advertisements and she thought that what had happened was that they were asked to do a search. She doesn't say that's - it was only what she thinks happened. She doesn't actually say that nobody else could have done.

PN248

MS DUFFY: Doesn't directly say that, but that follows on from her saying that she actually contacted the agency. So, I mean, without her directly saying so, it's not just guessing, it's following - - -

PN249

COMMISSIONER WHELAN: Sorry, where are you referring to?

PN250

MS DUFFY: Paragraph 258.

PN251

COMMISSIONER WHELAN: I was looking at paragraph 75 where she makes the statement.

PN252

MS DUFFY: No, I'm sorry, your Honour, I've probably skipped over that a little too quickly.

PN253

JUSTICE GIUDICE: Yes. Which paragraph are you at?

PN254

MS DUFFY: At 258, your Honour. The copy of the transcript I've got doesn't have any page numbers so I'm afraid I can't - - -

PN255

JUSTICE GIUDICE: No, we don't have that any more.

PN256

COMMISSIONER WHELAN: No, they've got paragraph numbers, they don't have page numbers. I see. So this is where she says they indicated they had no instructions from anybody at API.

PN257

MS DUFFY: That's right, your Honour, that's following the conversation with the agency - sorry, Commissioner.

PN258

JUSTICE GIUDICE: That seems to be in re-examination.

PN259

MS DUFFY: It is, your Honour. I think it's actually in response to a question from the Commissioner.

PN260

JUSTICE GIUDICE: Yes.

PN261

MS DUFFY: But it does follow on from - perhaps I'll withdraw that.

PN262

COMMISSIONER WHELAN: If they were briefed to do a search for a space planner at 65 to 70,000, why did they put an advertisement in that said 75,000 consistent with the statement previously made by this witness to say that there was a position in the structure valued at 75,000?

PN263

MS DUFFY: Your Honour, we don't know why the agency did that. But the point I - - -

PN264

COMMISSIONER WHELAN: Well, it's just that the 75,000 is a very specific figure. It's sort of like - - -

PN265

MS DUFFY: Well, that may well be the reason. I mean, Commissioner, we're only guessing, but that may well be the reason that the agency has assumed that's the salary component when, in fact, that is what would properly be described, and has been described by Ms Fordham as the total employment cost for the position. In summary, my submissions in relation to that issue, that the Commissioner was entitled to, in effect, prefer the respondent's evidence on those points. There was clear evidence before him, in my submission, that the job was a significantly different position. The advertisements certainly need to be explained, but the company did explain those to the best of their ability.

PN266

And I should deal briefly with the issue as to the absence of Mr Meiliunaus, who had the conversation with the - or allegedly had the conversation with the applicant. Now, it's true that he was not called. That evidence was not contested. But it's my submission that there need be no Jones v Dunkel inference drawn from that. Ms Fordham and Mr Stapleton actually were the decision makers in terms of where that position would sit in the structure and what the remuneration was. Now, whether or not Mr Meiliunaus said to Mr Cruickshank he was not not qualified for the position in terms of being under qualified, doesn't indicate that that was in fact the true position. If he did say that we say that he was mistaken, and that the appropriate people with the power to fill that position appeared as witnesses before the Commission. And that really is of no significance.

PN267

JUSTICE GIUDICE: Where did that gentlemen, where was he placed in the overall structure or hierarchy of the company?

PN268

MS DUFFY: Certainly in a position that's less senior to Ms Fordham, your Honour. She is the human resources manager for the respondent.

PN269

JUSTICE GIUDICE: He was in the human resources area was he?

PN270

MS DUFFY: Yes, he was. I'm sorry, your Honour, if I might just - I'm told, your Honour, I think that might, what I just said, might not strictly be true. He might be at a similar level of seniority but without - actually more senior, your Honour, but without specific responsible for these issues and specific knowledge about that.

PN271

JUSTICE GIUDICE: Yes. Well, he was described I think as the HR team leader.

PN272

MS DUFFY: Yes. I suspect that's not an accurate description either, your Honour.

PN273

MR BORENSTEIN: We're in agreement, your Honour, that he's superior to Ms Fordham.

PN274

MS DUFFY: But, your Honour, the point has to be made, with no specific knowledge about how this review was conducted and certainly not - - -

PN275

MR BORENSTEIN: Well, there's no evidence of that at all.

PN276

MS DUFFY: Well, Ms Fordham gave evidence that she was responsible for conducting the review, it's in her statement.

PN277

MR BORENSTEIN: But there's no evidence that Mr Meiliunaus didn't know.

PN278

MS DUFFY: No, I would have to concede that.

PN279

JUSTICE GIUDICE: There's no evidence either way is there?

PN280

COMMISSIONER WHELAN: No. The only evidence is whatever his conversation with Mr Cruickshank.

PN281

JUSTICE GIUDICE: Yes, all right.

PN282

MS DUFFY: But the reason that the people that gave evidence on behalf of the respondent gave that evidence is because they were the people that were intimately involved with the restructure as it affected the relevant divisions of the respondent organisation in terms of where the applicant's position was placed.

PN283

JUSTICE GIUDICE: Yes.

PN284

MS DUFFY: Now, in relation to the submissions made by my friend about the suggestion that Commissioner Eames has somehow misdirected himself as to the appropriate test in a matter like this, certainly that's something that we say is clearly not the case. The Commissioner certainly addressed the question he was required to address under the legislation, and that is the question of whether the operational reasons advanced by the respondent were operational reasons for the termination of the applicant's employment. To some extent I've already dealt with those submissions as part of the submissions I made in relation to ground one of the notice of appeal.

PN285

It's clear from the decision that Commissioner Eames gave proper consideration to the terms of the section and the appropriate test as articulated by the Full Bench in Village Cinemas, of course which he was also a member of. And there's evidence of that at paragraphs 17 to 19 of the decision, where the Commissioner clearly sets out what he is required to address. He notes that the parties had both referred to the decision of the Full Bench in Village Cinemas, and quotes paragraph 28 of that decision, to which you've already been taken today in full at paragraph 19 of his decision.

PN286

And again, I hope without repeating submissions that I've already made, the Commissioner returns to that in paragraph 29 of his decision. He says:

PN287

The argument advanced by the respondent in this matter is persuasive and meets the criteria set out in Carter v Village Cinemas.

PN288

And goes on to elaborate slightly on that through to paragraph 32 of the decision.

PN289

COMMISSIONER WHELAN: And you say at paragraph 22 is where he actually applies what he's quoted in paragraph 19?

PN290

MS DUFFY: Sorry?

PN291

COMMISSIONER WHELAN: Paragraph 19 is just a quote from the Village Cinemas decision.

PN292

MS DUFFY: That's right.

PN293

COMMISSIONER WHELAN: Are you then saying that paragraph 22 is where he applies what that paragraph stands for?

PN294

MS DUFFY: Yes, Commissioner, bearing in mind what I've previously said about the way in which the case was presented as well, which would explain the somewhat shorthand way in which the Commissioner's described the evidence, saying that he's not satisfied there is any evidence to substantiate a sham or that the applicant was targeted inappropriately. But certainly, Commissioner, it is my submission that it is clear, if one reads the decision in its entirety, that Commissioner Eames understood the requirements of the Act and what he was required to do, particularly post the Full Bench decision in Carter, and has in fact done that.

PN295

The other indication of that is, of course, in the Commissioner's comments made during the closing submissions. And I think he's tackled both parties in relation to what the appropriate test is. Again, without taking you to those references I might just note them. It's in the closing submissions at paragraphs 633, 641 and 645. In those passages, to summarise, the Commissioner certainly makes it very obviously he is aware of the requirements of the Act, the decision in Carter and the difficulties, in fact, that that may cause members of the Commission in a case like this.

PN296

I think the only real point of any substance that I wanted to make is in response to what my friend has said about there being insufficient reasons given. And those submissions begin at paragraph 23 of the written outline of submissions. If I might just hand up the cases that are referred to within that paragraph and the following paragraphs. Now, the parts of those decisions that I actually wanted to refer you specifically to are quoted in full in our submissions particularly, and so I won't go to those in detail. But the main point is that in Soulemezis v Dudley Holdings, which is a decision of the Supreme Court of New South Wales, his Honour, Mahoney J, said:

PN297

In my opinion the law does not require that a judge make an express finding in respect of every fact leading to or relevant to his final conclusion of fact, nor is it necessary that he reason and be seen to reason from one fact to the next along the chain of reasoning and to that conclusion.

PN298

Now, certainly I accept that if it is a crucial issue and it's one upon which jurisdiction rests, there really should be a finding made in relation to that. But in this matter we say that the appellant really complains about not every step in that reasoning process being shown. And it's the respondent's submission that the Commissioner did not need to in fact make a finding on every single part of the evidence that led him ultimately to the relevant conclusion within the statutory test.

PN299

At paragraph 24 of the written submissions I've just indicated that those comments have been adopted by the Commission in matters, particularly the one that I have provided you with an extract of, which is the Australian Workers Union v Construction, Forestry, Mining and Energy Union, in which the Bench accepted that that proposition that I've just read was in fact correct. There were just a couple of matters that were raised by my learned friend which I needed to deal with. I think it was put, and I don't want to misquote my friend, that it was not raised before the Commissioner as to whether there was a car attached to the new position.

PN300

Now, we say that it was raised, and Ms Fordham gave evidence that there was in fact no car to go with the new position. I'm afraid I can't point you to that transcript reference at present, but I may be able to find it.

PN301

COMMISSIONER WHELAN: It's PN255.

PN302

MS DUFFY: Thank you, Commissioner. I think the only other thing I wanted to say in response to the appellant's submissions was that it had been provided with the definition of redundancy. And I think there's no argument that that is the generally accepted definition. But it's my submission that whether or not the applicant was redundant is actually not the question that was before the Commissioner, nor should be before the Full Bench. The question is whether the termination of the employment was for operational reasons. And it's my submission that that is - it may of course be for reasons of redundancy, but it may in fact be a different test.

PN303

I think the only other point I would like to make is we still resist leave to appeal being granted. We say that the Commission should refuse leave to appeal or dismiss the appeal.

PN304

JUSTICE GIUDICE: Ms Duffy, I've got a couple of questions. The first is about what you say in paragraph 15 of your outline, where you refer to what you say is a concession made by Mr Cruickshank in relation to the restructure. I think paragraph 9 of Mr Stapleton's supplementary statement describes the difference in the roles before and after, as it were.

PN305

MS DUFFY: That's right. Really they're - - -

PN306

JUSTICE GIUDICE: I'm not quite sure how 559 is to be read. Would you assist me with that?

PN307

MS DUFFY: Yes. The point I make, your Honour, and I apologise it is a bit - it's not properly explained there, it's in shorthand. But towards the end of the examination-in-chief, which I think just appears at the top of that page of transcript at paragraph 556, Mr Cruickshank was asked really what his opinion was, you know, in his opinion was it a different position. And the point, your Honour, that I'm making is that Mr Stapleton was describing the new position. He was describing something that was outside of Mr Cruickshank's knowledge, and that's what was put to him at paragraph 559 of transcript, and certainly at least to some extent he appeared to agree with that proposition.

PN308

JUSTICE GIUDICE: Well, it seems to start earlier at 554.

PN309

MS DUFFY: Yes, your Honour.

PN310

JUSTICE GIUDICE: 549 in fact.

PN311

MS DUFFY: I think it's more specifically, your Honour, at paragraph 554 where that specific reference starts, to paragraph 9 of Mr Stapleton's supplementary statement.

PN312

COMMISSIONER WHELAN: Mr Pinchen does take him to Mr Stapleton's statement, and he concludes at the end of his comments about that to say that there's no decision making process under the supplementary statement is not true. Are you saying that he's not entitled to reach that conclusion?

PN313

MS DUFFY: Your Honour, he's entitled to reach that conclusion but only within his realm of knowledge. We're saying this is - - -

PN314

COMMISSIONER WHELAN: Well, based on his knowledge of what a space planner does.

PN315

MS DUFFY: This is a new position. That's right, that the new position, I mean, is - - -

PN316

COMMISSIONER WHELAN: Well, it's still called a space planner isn't it?

PN317

MS DUFFY: It is, your Honour, but it is, we say, a very different position, and Mr Cruickshank just, quite frankly, would not be in a position to understand what level of responsibility or decision making would be required for a new position, a position that has not been filled and does not exist in terms of him being able to comment on that.

PN318

JUSTICE GIUDICE: I'm sorry, I'm a bit behind. There's an allegation there's a concession been made about the change in the decision making function, is that right?

PN319

MS DUFFY: Yes, your Honour. That's really my point, and it's probably not properly expressed.

PN320

JUSTICE GIUDICE: If you could just stay with me for a moment, Ms Duffy. I'm just trying to work that out. Because when you look at the passages immediately before the cross-examination he's taken to the statement, and he makes comment about it in 556. He says the role is essentially requiring two parties working together by a selected product and work with the space planning team and fit into the right location. It talks about the software system. Then he says:

PN321

To say that there's no decision making process under the supplementary statement is not true.

PN322

Then in re-examination he's asked about that paragraph again.

PN323

MS DUFFY: That's cross-examination, your Honour.

PN324

JUSTICE GIUDICE: I'm sorry, cross-examination, yes. If I can just pick up from the last point about paragraph 9:

PN325

You wouldn't know whether that was true or not would you?

PN326

And he says "That's correct." So the concession you rely on is that he doesn't know.

PN327

MS DUFFY: That's right, your Honour, in the sense that it was put to him, but it's a position that didn't exist when he was there. That's true, but I think - - -

PN328

COMMISSIONER WHELAN: That's trying to say that based on my experience in the industry. He's a space planner and he's worked in the industry for some time and he has some idea of what a space planner does.

PN329

MS DUFFY: That's right, Commissioner, and I think I've said that that's - but he cannot know exactly what is going on within the organisation after he's no longer employed there.

PN330

JUSTICE GIUDICE: Yes, the light just went on. I understand now what the reference is to. Can I ask another question? If we came to the conclusion that there was - although we mightn't be able to identify it particularly, specifically - an error in the decision making process perhaps arising from a failure to adequately deal with the evidence, what, in your submission, should we do?

PN331

MS DUFFY: I think particularly the example you've given, your Honour, if it was a failure to adequately identify or refer to evidence, that it should be remitted to Commissioner Eames to make an appropriate - he's heard all the evidence. If the deficiency was to be found to be not making an appropriate finding, that would be, in my submission, the most expedient way to deal with the appeal.

PN332

JUSTICE GIUDICE: Ask him to give us the reasons why he came to the conclusion.

PN333

MS DUFFY: Well, your Honour, we say he has, and that's - - -

PN334

JUSTICE GIUDICE: Yes, I understand that.

PN335

MS DUFFY: And those reasons are there.

PN336

JUSTICE GIUDICE: Yes, of course.

PN337

MS DUFFY: And it's hard to, I suppose, guess as to what the Full Bench might make of those submissions.

PN338

JUSTICE GIUDICE: Well, it's a hypothetical question.

PN339

MS DUFFY: But we do have a situation, your Honour, which an Appeal Bench is often faced with, where the member at first instance has of course heard all of the evidence, including the oral evidence which was quite significant in this matter.

PN340

JUSTICE GIUDICE: Thank you.

PN341

COMMISSIONER WHELAN: Just one question, Ms Duffy. You said whether he was redundant or not is not the issue. Are you suggesting that if he wasn't redundant in the sense that the position was no longer - that he'd occupied was no longer there and that this is a different position that is now there or may be there, or potentially there or whatever, what are you saying is the operational reason then?

PN342

MS DUFFY: Well, clearly we say it is a redundancy, Commissioner. It's more that if - - -

PN343

COMMISSIONER WHELAN: But if it's not a redundancy what's the operational reason?

PN344

MS DUFFY: Well, I think what I'm saying, Commissioner, is that it's not something that is relevant to this case, the definition of redundancy. What's got to be looked at is the definition contained within the Act, which is whether there is a genuine operational reason. And clearly a redundancy may be an operational reason. But whether or not - it really goes to the issue of genuineness rather than whether - I mean, if a redundancy is effectively - or it's dressed up as a redundancy and the real reason is something else. It really goes to the issue as to whether it's a genuine operational reason rather than whether it meets the legal definition of a redundancy. That was really the only point I was making in relation to that, and that was in response to the submissions made by my friend in relation to the definition of redundancy.

PN345

JUSTICE GIUDICE: Thank you, Ms Duffy. Mr Borenstein?

PN346

MR BORENSTEIN: Yes, your Honour, I can be very brief. In relation to our learned friend's submission about the failure to call Mr Meiliunaus, in our respectful submission it's not an answer to say, well, we called other people who have an opinion about what happened, when what Mr Meiliunaus said to our client was not cross-examined on and was at odds with what the witnesses were called did say. We don't know what the resolution of the conflict is, but neither does the Commissioner. And it was a conflict and the Commissioner needed to resolve it, and he was not assisted by the failure to call him, and it's a classic Jones v Dunkel situation, your Honour.

PN347

And beyond that of course, because there is a conflict about a critical issue in the case, again there was no reference in the decision of the Commissioner to that conflict and the way in which he has resolved that conflict. The reference that was made to Ms Fordham's evidence about the placing of the external advertisements - this is at paragraphs 257 and following in the transcript - Ms Duffy kept saying that Ms Fordham said that - Ms Duffy kept saying that the company didn't know anything about the advertisements. Ms Fordham indicated that she didn't know. But that doesn't carry the proposition or the distance to say that the company didn't know.

PN348

And if the Commission looks at the page that Ms Duffy was reading from which starts at paragraph 257, it will be seen that paragraphs 259 and 260, there is an indication that in fact the advertising agency was briefed by one of the other HR managers. You will see at 259 she's asked:

PN349

How would they know to advertise for these particular positions? Because they were briefed to do a search for a space planner at 65 to $70,000?

PN350

And that prompted a question from the Commissioner about why they nominated $75,000. And it also raises a question about if Ms Fordham didn't know about it how did she know they were briefed to search for a space planner at that particular level? But that's another unanswered question. But then going to paragraph 260, which is the crux of what I want to say:

PN351

Who did that, who was responsible for initiating that? That was briefed by one of our other HR managers.

PN352

Now, whoever that was, was not called to explain, and all we're left with is Ms Fordham's disavowal of any understanding of what happened beyond that. She goes on, she's re-examined further:

PN353

You had no knowledge of that?---I had no knowledge of it, no.
Is that person or persons answerable to you?---No.

PN354

So the evidence that she's given above that seems to be some sort of speculative evidence. But the point of our objection is that there is obviously somebody in the company who has responsibility for the placement of this advertisement, the placement of the advertisements and the slight change in the advertisements from the form that they took before the conciliation and the form they took after the conciliation was raised by us squarely in the material before we went to trial. And it was not answered. And that's the point of the Jones v Dunkel inference that we seek to rely on.

PN355

JUSTICE GIUDICE: Her evidence was, in 258, that she got in touch with the agency, who told her they were placed wholly and solely by the agency of their own volition to do a search of the marketplace, and she says that was responsive to some indication given earlier, or a brief given earlier to do a search for a space planner at 65 to 70,000. But you do have direct evidence. How you actually evaluate that evidence, but that's what she says, that they told her that they'd put it in at their own initiative.

PN356

MR BORENSTEIN: That's so. And then she's asked further, and this is by her own counsel, she's asked "Well, how would they know what to do?" I'm sorry, this is the Commissioner. The Commissioner says "Well, how would they know what to do?" And then she comes back to the fact that they were actually briefed. So there's an inconsistency between saying they just did it of their own volition to a position where they actually have some instructions about it.

PN357

COMMISSIONER WHELAN: I think she's making a distinction between being briefed to do a search and being briefed to put an ad in. I think that's the distinction she's making. The point is, at a couple of pages before, she says there a position in the structure which was for a space planner valued at $75,000.

PN358

MR BORENSTEIN: Yes.

PN359

COMMISSIONER WHELAN: So presumably whoever the agency was, they had that information.

PN360

MR BORENSTEIN: Well, this evidence leaves open the unanswered question of why they advertised at a salary that's different from the briefing that she says they received.

PN361

COMMISSIONER WHELAN: Why they had two different ads.

PN362

MR BORENSTEIN: Yes. Now, these were all questions that were raised as contentious issues in the material, and not answered. And that's what gives rise to the adverse inference. Now, there was - - -

PN363

JUSTICE GIUDICE: I suppose if the applicant had subpoenaed somebody from the agency there might have been some issue of privilege, or perhaps not.

PN364

MR BORENSTEIN: Well, your Honour, the cases about Jones v Dunkel speak about people, prospective witnesses being in one camp or the other, and that an inference is drawn when the witness that's not called is in the camp of the opposing party and one would expect that party to be the one to call the witness.

PN365

COMMISSIONER WHELAN: And presumably until this time the applicant was not aware that it was going to be argued that the ads were never authorised.

PN366

MR BORENSTEIN: Well, certainly not that.

PN367

JUSTICE GIUDICE: Was there nothing in the statements about that?

PN368

MR BORENSTEIN: Not that they were not authorised. I'll get someone to check that, but I don't have a recollection that it was said they were not authorised.

PN369

MS DUFFY: I can confirm that.

PN370

COMMISSIONER WHELAN: There's nothing in the statements.

PN371

MS DUFFY: No. And part of the reason was because, of course, the respondent, or the employer in this case, because it's a jurisdictional objection, files their materials first. The advertisements were raised in the applicant's materials which came second, so that was - we did have, that's true, file a supplementary statement from Mr Stapleton, but part of it was the urgency in trying to find out what had happened before the case came on. But I can confirm that point. While I'm on my feet I might say though there's nothing to suggest at that point that anyone from the recruitment agency was actually in the applicant's - or the employer, the respondent's camp, so to speak. It was the applicant whom in fact was relying on the advertisements.

PN372

MR BORENSTEIN: I think my friend misunderstands the point about the witnesses and camps. The agency was working for the company, and on the authorities they are clearly in the company's camp, so to speak, and it's a witness from their side that you would expect them to call if they could assist. And that's the whole point of the Jones v Dunkel inference, that a party that could call a witness that would assist, and doesn't do that, is then open to the inference against it, that the failure to call a party confirms the inference that they wouldn't have assisted.

PN373

JUSTICE GIUDICE: Was that submitted?

PN374

MR BORENSTEIN: I beg your pardon?

PN375

JUSTICE GIUDICE: Was that submitted?

PN376

MR BORENSTEIN: I don't think there was a submission made below about that, no, your Honour.

PN377

JUSTICE GIUDICE: So the Commissioner was never asked to draw the inference?

PN378

MR BORENSTEIN: I can't say that he was, no, your Honour. Your Honour, there were some references made by our learned friend to some comments that were made by the Commissioner in final addresses which are said to indicate that he's aware of the issues. I know it's always dangerous to look at exchanges in final addresses, and I don't know what weight the Commission will attach to it. But for the record can I just direct the Commission's attention to the last of the three paragraphs that have been referred to, which is paragraph 645, and the final sentence in that, or the final two sentences in that which at least suggest - I don't put it any higher than that - but at least suggest that perhaps there was an erroneous view about the arrangement that attained.

PN379

JUSTICE GIUDICE: We won't be reading too much into statements during the course of the hearing. We wouldn't expect people to read too much into questions during the course of the appeal.

PN380

MR BORENSTEIN: No, I understand that, your Honour. But since it was raised I felt I should at least make that point. Can I, on the point about adequacy of reasons, our friend's made reference to Soulemezis. Can I simply ask, without taking the time now to read it, the Commission to look at Dornan's case at the foot of page 567 across to 568, where there's an extract from some Federal Court jurisprudence which suggests the test should be one of an exposure by the decision maker to - - -

PN381

JUSTICE GIUDICE: It's a question of what's adequate in the particular case.

PN382

MR BORENSTEIN: Yes, that's right. And where there's a significant issue there's a need to make clear what the findings are. Can I just finally read to the Commission an extract from a decision which we haven't given you but which we'll provide. This is a decision of Sackville J in the Federal Court in a matter called Total Marine Services v Kiely. It's reported in volume 51 of the Administrative Law Decisions at page 635. And his Honour deals with this question about the adequacy of reasons being given, he makes reference to Dornan's case and several other authorities, and then he says at page 641:

PN383

In this case the tribunal summarises at considerable length the evidence given by the employee and the reports provided by the range of medical practitioners and other health professionals who expressed their views on the relatively minor injury the employee sustained.

PN384

It's a compensation case, your Honour:

PN385

However, the new recitation of the evidence, or noting that certain propositions have been put ...(reads)... avoid an error of law.

PN386

The point his Honour makes is it's not enough simply in a decision to say, well, here's all the bits of evidence that were presented before me, this is my finding, ultimate finding, without connecting the two by a process of reasoning. And to the extent that our friend says, well, the Commissioner has referred to this evidence and that evidence and the other evidence at the beginning of his decision, doesn't carry the day for the respondent because there has to be an exposure of the reasoning that moved the Commissioner's mind from noting the evidence that was given to the conclusion that it reached. And he's not done that, in our respectful submission.

PN387

Finally can I simply say that if the Commission is of the view that the matter needs to go back, it's our respectful submission that the normal course would be for it to go back for rehearing before a different Commissioner. To go back to the same Commissioner would raise all sorts of issues about pre-judgment and things of that sort and, as I understand it in any event, that's the normal course.

PN388

JUSTICE GIUDICE: I think it is the normal course that it would go to somebody else, particularly where there might be issues of credit.

PN389

MR BORENSTEIN: Yes. They're all the submissions in reply I have.

PN390

JUSTICE GIUDICE: Thank you both very much for your submissions, they have been very helpful. It will be necessary to reserve our decision, and we'll give it as soon as we can. We'll now adjourn.

<ADJOURNED INDEFINITELY [12.52PM]