C2007/2834, Transcript of Proceedings [2007] AIRCTrans 390 (6 August 2007)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 17187-1

JUSTICE GIUDICE, PRESIDENT
SENIOR DEPUTY PRESIDENT HARRISON
COMMISSIONER HOFFMAN

C2007/2834

s.120 - Appeal to Full Bench
Appeal by Boeing Australia Limited
(C2007/2834)

BRISBANE

10.02AM, TUESDAY, 24 JULY 2007

Reserved for Decision

PN1

MR J MURDOCH: I seek leave to appear as counsel. I’m instructed by Minter Ellison.

PN2

MR G REBETZKE: I seek leave to appear as counsel for the respondent,
Mr Acworth. I am instructed by Messrs Roberts & Kane Solicitors.

PN3

JUSTICE GIUDICE: Mr Rebetzke. I take it that it would be appropriate to grant leave to appear in each case. Mr Murdoch.

PN4

MR MURDOCH: Might I assume that the outline of submissions has reached members of Bench?

PN5

JUSTICE GIUDICE: Yes and you can assume that we’ve read it.

PN6

MR MURDOCH: Thank you. On the basis of that assumption might I take it as read?

PN7

JUSTICE GIUDICE: Yes.

PN8

MR MURDOCH: Thank you. There are though so further matters that I’d propose to deal with.

PN9

JUSTICE GIUDICE: There may be a couple of questions too, Mr Murdoch, arising out of that submission, but you proceed.

PN10

MR MURDOCH: Thank you. In terms of the factual basis for our case might I refer you to tab 8 in the appeal book which is the statement of Peter Robinson. At page 135 of the appeal book you will see there that he describes in paragraph 3 the HFMOD project. I won’t read it out aloud, but I'll draw your attention to his description of the project. Then at page 136 under the heading Nature of Engineering Projects there are a series of paragraphs 4 through 9 in which
Mr Robinson gives an outline of the particular engineering projects that Boeing undertakes on contract to various entities and in that he breaks the projects into particular components. He also in that section deals with the role of engineers in the various distinct phases of a project.

PN11

Then on page 137 of the appeal book Mr Robinson deals with the movement of engineers from role to role and you’ll see in paragraph 10 that he says that the nature of an engineer’s career at Boeing necessarily involves transferring into different roles within different phases of projects and also from project to project according to the particular projects undertaken at that time and the stage at which those projects are at. This will depend on the demands of the business at that time. No single role or assignment lasts forever. The remaining paragraphs under that heading, 11 through to 13, are relevant but I won’t read them.

PN12

Then there’s a heading at the top of paragraph 14, Employment of Brett Acworth. In paragraphs 14 through to 19 there’s a summary of Mr Acworth’s employment with the company, his involvement as a software engineer on project based work on particular assignments and his various assignments are traced. Now, at paragraph 20 Mr Robinson commences a section that’s headed Attempted at Subsequent Reassignment and that goes through to and includes paragraph 35.

PN13

JUSTICE GIUDICE: Was there any particularisation of the other two positions that were offered that are referred to in paragraphs 22 and 23 there? Is there any more evidence about that?

PN14

MR MURDOCH: Your Honour, I'll get those instructing me to check, but on my recollection of the materials I don’t believe there’s much more detail than what’s given in Mr Robinson’s statement.

PN15

JUSTICE GIUDICE: There was nothing easily discoverable, but that doesn’t mean there isn’t something somewhere.

PN16

MR MURDOCH: Well, we will check that.

PN17

JUSTICE GIUDICE: Yes, thank you.

PN18

MR MURDOCH: You will see in paragraph 33, accordingly his employment was terminated by letter signed by Mark Nance division general manager for integrated systems development dated 12 February 2007. A copy of his letter is annexure PR5. 34:

PN19

This letter refers to Mr Acworth’s resignation which is perhaps not an accurate description of what occurred, but reflected our position that by his own refusal to accept an alternative role he himself had made his continuing employment with Boeing impossible.

PN20

In paragraph 35:

PN21

Mr Acworth’s employment terminated because (a) his assigned role was about to come to an end and Boeing had no further use for an employee in that role and being Mr Acworth had failed to accept any of the available alternative positions available to him and had insisted that the only role he would undertake was the role which was ending.

PN22

JUSTICE GIUDICE: Are we to take it that Mr Robinson was the decision maker?

PN23

MR MURDOCH: I'll get instructions on that.

PN24

JUSTICE GIUDICE: I ask that question because of the recent Full Bench decision in Cruickshank v Priceline which points to the need to produce evidence from the decision maker as to the reason for the termination.

PN25

MR MURDOCH: Yes. The answer is yes. I understood that to be the answer before your Honour’s comment, by the way, but I gather it was an important question.

PN26

JUSTICE GIUDICE: Yes. Well, there didn’t seem to be any suggestion it was anybody else.

PN27

MR MURDOCH: No.

PN28

SENIOR DEPUTY PRESIDENT HARRISON: And on 35(b) of the employer’s reasons, to the extent it ascribes to Mr Acworth an insistence that the only role he would undertake was the role that was ending, the evidence was that Mr Acworth accepted it would be ending. There was some difference of view as to when?

PN29

MR MURDOCH: Yes.

PN30

SENIOR DEPUTY PRESIDENT HARRISON: Yes.

PN31

MR MURDOCH: And the evidence was that initially when there’d been discussion as early as September last year those discussions had taken place against belief that the role would end at around the end of ’06 and later those estimates were revised to push it into March. But there had been a view ventilated during the hearing where Mr Acworth had expressed an opinion that the role could have gone beyond March, though the management position was always that it would end in March.

PN32

JUSTICE GIUDICE: Sorry to interrupt again, Mr Murdoch, but can we take it that that passage you’ve just taken us to in Mr Robinson’s first statement represents the reasons relied upon?

PN33

MR MURDOCH: Yes.

PN34

JUSTICE GIUDICE: Nothing that happened in the subsequent
cross-examination and so on?

PN35

MR MURDOCH: You can take it that they are the reasons and I took you to those because a later point to passages in the Senior Deputy President’s decision in which the Senior Deputy President appears to characterise the termination as being conduct based and frankly there is nothing in the evidence to suggest that any part of it was conduct based, nor in my submission is there any basis for any inference that it was conduct based.

PN36

JUSTICE GIUDICE: Is it fair to say then that there’s no, from your perspective, there’s no issue about the reason that there’s a difference as to the characterisation, or whether the reason in fact includes a genuine operational reason?

PN37

MR MURDOCH: It appears that that’s what the case is about frankly.

PN38

JUSTICE GIUDICE: Yes. That - yes.

PN39

MR MURDOCH: And again while we’re on the subject, it appears that one of the errors wound up in the Senior Deputy President’s analysis is the failure to have regard to the fact that the genuine operational reason doesn’t necessarily have to be the only reason. Now, we say it was the only reason, but even if he’d been right about there being some other conduct based factor, that wouldn’t have detracted from the fact that there was a genuine operational reason. One of the interesting aspects of this appeal is that both the appellant and the respondent come here submitting that the reasoning of the Senior Deputy President was erroneous. The respondent in their outline of submission submit that the reasoning between paragraphs 50 and 60 of the Senior Deputy President’s decision proceeded on two fundamental errors.

PN40

JUSTICE GIUDICE: Yes. I’m not sure that we’ve seen an outline from
Mr Rebetzke.

PN41

MR REBETZKE: You haven’t, your Honour. I apologise for that.

PN42

JUSTICE GIUDICE: No, there was no direction given to file outlines I don’t think, so there’s no need to apologise. But it would be useful to have it, thank you.

PN43

MR REBETZKE: Thank you.

PN44

JUSTICE GIUDICE: Mr Murdoch, would it be of assistance if we paused or if you paused for a few moment while we read this?

PN45

MR MURDOCH: It would be of assistance and it will probably shorten proceedings if you do.

PN46

JUSTICE GIUDICE: All right. Well, we’ll do that. Yes, thanks Mr Murdoch.

PN47

MR MURDOCH: Turning to your Honour’s earlier question about the other roles, there’s a little bit of discussion about them in paragraphs PN211 through to PN214 of the transcript when Mr Rebetzke, my learned friend, was
cross-examining Mr Robinson. Frankly I don’t know that it takes it very much further, but I give you the reference.

PN48

JUSTICE GIUDICE: Yes.

PN49

MR MURDOCH: There was also in Mr Robinson’s second statement some brief discussion about a comparable position in Mobiles, that’s under tab 9 of the appeal book page 164 to 165 paragraphs 10 and 11. But that seems to relate to a different issue, namely a suggestion at one stage that Mr Acworth had pointed to an interest in reassignment to the Mobile subproject of the HFMOD. Those paragraphs explain that that didn’t come to anything and it explains the lack of a suitable comparable role. Could I go to the Senior Deputy President’s decision and start at paragraph 16, and this is at tab 2 of the appeal book page 7.

PN50

The Senior Deputy President commenced an examination of the facts and circumstances of the matter, 17 can be taken as read and 18 he said the required notice period was waived and four weeks payment in lieu of notice paid to the employee. There appears to be no contest between the parties that the correspondence of 12 February 2007, but for the effect of the application of the Boeing risk management policy would have had the effect of notifying the employee of a four week notice period which would have enabled him to work at least through to a period around the beginning of March 2007 at which time in the employer’s view the test tool project on which the employee was working would have culminated.

PN51

Consequently there is no argument between the parties, or at least no submission before the Commission, that the application of the Boeing risk management policy was a distinct and temporally segmented reason for the termination of the employee’s employment. If I could go on then to paragraph 20 of the decision. The employer claimed that notwithstanding the letter of 12 February 2007 it terminated the employee’s employment because of genuine operational reasons. Principally it argued that the employee had refused a new role or assignment as proposed upon the employee’s current role concluding and this meant there was no work that the employee could perform for the employer.

PN52

In such circumstances the employer contended that it terminated the employee’s employment for genuine operational reasons as the employee could perform no work within the employer’s work structure. This is made more explicable by some further background. And then there’s paragraph 21, 22 dealing with the employee’s qualifications and his history. Then paragraph 33:

PN53

In the current circumstances it was the employer’s view that the employee’s role on the current project on which he worked on the modem channel characterisation test tool component of the HFMOD project was nearing completion and he would be reassigned in accordance with practice to another comparable position within the business.

PN54

Then there’s a discussion of common law and then employer’s redundancy and redeployment policy. That’s paragraphs 24 through to 26. 26:

PN55

The employee refused to accept comparable role offered by the employer.

PN56

27:

PN57

On or about September of 2006 the employer and the employee engaged in some iterations concerning the assignment the employee would next undertake upon completion of his current assignment.

PN58

28:

PN59

What was the offer of alternate comparable employment?

PN60

And then the Senior Deputy President deals with that in paragraph 29. In 30 he says:

PN61

The employee had rejected two assignments presented to him from project managers.

PN62

31:

PN63

Mr Robinson contended that a third comparable position was identified in the HFMP systems integration test team in the position of engineer, systems engineering, project characterisation engineer/systems engineer.

PN64

That’s taken further in paragraph 32 and 33. Paragraph 34:

PN65

The employee for his part rejected the third new position as proposed by his employer. He did so on grounds -

PN66

Et cetera, et cetera. 35 deals with further contentions of the employee as did paragraph 36. Then in 37:

PN67

Because the project he was currently working on was nearing completion and the employee refused to accept the comparable role offered by way of reassignment, the employer claims it no longer had any demand for the employee’s skills and the employee’s employment was terminated as a consequence. This it was contended was the operative reason for the dismissal.

PN68

38:

PN69

In this resides the genuine operational reasons for the termination of the employee’s employment. The termination of his employment occurred for an operational reasons existing as a result of the structure of the business.

PN70

Then there’s a discussion of the Village Cinemas matter. Paragraph 40 the Senior Deputy President said:

PN71

The employer and the employee fell into dispute about whether or not the reassignment as offered to the employee constituted comparable employment.

PN72

And that’s elaborated on. And then in 41:

PN73

The refusal by the employee to accept the reassignment therefore led the employer to form the view that it could not utilise his skills in its work structure and in this resides the operational reason for its decision to bring the employee’s employment to an end.

PN74

Then in 42 the Senior Deputy President posed a question:

PN75

Does this constitute a genuine operational reason for the decision to terminate the employee’s employment so that it attracts the exclusion at section 643(8) of the Act?

PN76

43 the decision went on:

PN77

As mentioned above, the issue now before the Commission involved the proper characterisation of the reason for the termination of the employee’s employment. In other circumstances the discovery of a fact alone might persuade the Commission that such a claim might be true. Such circumstances might be a business or business unit closure, a structural change owing to a revenue shortfall or an operational restructure driven by a business case.

PN78

Et cetera. 44:

PN79

In the above context the test of genuineness of the operational reason is relatively straight forward.

PN80

45:

PN81

But in the circumstances of the matter now before the Commission the test of the genuineness of the operational reason and the discovery of the operational reason itself requires some further characterisation of the relevant factual matrix.

PN82

46:

PN83

It appears that the operative reason for the termination of the employee’s employment was the result of his refusal to accept his reassignment which embodied the further work the employer wished him to perform pursuant to his contract of employment. Barring that act of refusal the employee would have continued in the employer’s employment usefully applying his skills in the manner as conceived and designed by the employer by way of reassignment.

PN84

If I can pause there, those two paragraphs in my submission assist in understanding the error in reasoning that infected the Senior Deputy President’s decision because what they do it to ignore the fact that the particular project on which Mr Acworth was employed was coming to an end. The focus in 46 and 47 was it appears solely on the inability of the parties to find suitable alternate assignment or reassignment, ignoring the fundamental factor which was always there, namely the pending completion of the test tool assignment or project that Mr Acworth had been employed on.

PN85

Irrespective of whether or not the parties had been able to negotiate an assignment or reassignment, the pending conclusion of the test tool project did not change. That operational factor, in my submission, was always there. Had the parties been able to successfully negotiate a reassignment it would have had the consequence that termination of employment did not flow from the cessation of the test tool project, but in fact the parties failed to negotiate a reassignment and the consequence was that the pending completion of the test tool project led to a termination of employment.

PN86

It is quite artificial, in my submission, to put forward, as the Senior Deputy President did, that barring that act of refusal the employee would have continued in the employer’s employment, usefully applying his skills, et cetera, et cetera. That ignores the fact that the project he was on was coming to an end. And if we go on to 48 the Senior Deputy President said:

PN87

Absent the action of refusal then on the employer’s own evidence further and continuing work would have been performed and demonstrably so by the employee which aligned with the employer’s knowledge of the employee’s skills and competencies. This further work was in the capacity as HFMP systems integration test team in the position of engineer -

PN88

Et cetera, et cetera. That being the position offered. But in my submission the significance of the employee’s refusal of that alternative position was simply to bring the parties back to where they started and that was the fact that the particular project on the test tool was coming to an end in March.

PN89

JUSTICE GIUDICE: Mr Murdoch, could you just give me a reference when you get the opportunity to the letter of 24 January 2007 which is referred to in paragraph 29 of Mr Robinson’s statement? It was the letter which might properly be described as the reassignment letter.

PN90

MR REBETZKE: Page 188 of the appeal book.

PN91

JUSTICE GIUDICE: 188, thank you. Thanks, Mr Rebetzke. Are you looking at that, Mr Murdoch?

PN92

MR MURDOCH: Yes I am.

PN93

JUSTICE GIUDICE: So the acceptance down the bottom was the ..... that fits in with Mr Robinson’s evidence that he was given. He initially didn’t accept that he was given another 24 hours, I think.

PN94

MR MURDOCH: That's right, yes.

PN95

JUSTICE GIUDICE: Yes. And that was the acceptance which was sought?

PN96

MR MURDOCH: Yes.

PN97

JUSTICE GIUDICE: Yes, thank you. Although it’s headed Acceptance, it says to ask for an acknowledge of receipt of this confirmation of reassignment. It doesn’t actually ask for a acceptance of the reassignment. Is that correct?

PN98

MR MURDOCH: That’s what it says, but I think it’s taken in context. It is described as a confirmation of reassignment so I suppose it suggests that he confirms that there is a reassignment. And it says of course earlier that it had an effective date of 1 March. If there was any ambiguity in relation to it, that was cured by the later second chance which your Honour has referred to, the 24 hours to make his mind up.

PN99

JUSTICE GIUDICE: Yes, thank you.

PN100

MR MURDOCH: If we go then back to the Senior Deputy President’s decision, paragraph 49, he said:

PN101

In view of this it can not be said that the employee’s employment was terminated for an operational reason relevant to the skills requirements of the structure of the employer’s business. Rather the proper characterisation of the reason for the termination was the conduct of the employee in not acceding to his employer’s direction to undertake the required assignment.

PN102

That appears to be a characterisation by the Senior Deputy President of the reason for the termination as being conduct related. In my submission on all of the evidence there is no proper basis for that. The failure to take up the assignment to the new position was, in my submission, incidental to the fact that the current role was coming to an end. That was the underlying fact that is not in dispute. And I emphasis that this failure of the parties to negotiate a reassignment simply brought the parties back to the underlying fact which was that the existing assignment was coming to an end. Paragraph 50:

PN103

The characterisation of the claim in this way however is based to some measure on the assumption that the dispute over the reassignment and the fact of the unavailability of further work are causally interconnected and not able to be distinguished for purposes of argument.

PN104

It’s not completely clear just what the Senior Deputy President meant there, but he refers to the unavailability of further work and in my submission that reflects the approach that the employer took and we referred earlier to Mr Robinson’s statement and to paragraph (a) and paragraph (b). The combination of paragraph (a) and paragraph (b) was one that led to the unavailability of further work. Now, in paragraph 50 the Senior Deputy President struggles with the interconnection between unavailability of further work and the dispute over reassignment. Now, it doesn’t matter that there was a dispute over reassignment.

PN105

There appears to be a recognition on the part of the Senior Deputy President that there was unavailability of further work. Once he got to that finding in my submission he was obligated by the legislation to regard this as a case that’s a termination for reasons that included genuine operational reasons. Now, we make no concession that there was another reason, but if we’re wrong about that and the unavailability of further work was interconnected with other factors, that’s envisaged by section 643(8). And the subsection is manifestly clear that the applicant is unable to pursue relief where the reason for dismissal includes genuine operational reasons.

PN106

So paragraph 50 suggests very clearly that there had been a finding on the part of the Senior Deputy President that triggered subsection (8) of 643 and with respect, that should have been the end of it.

PN107

JUSTICE GIUDICE: Mr Murdoch, is there any ..... is there evidence that suggests that termination was in contemplation before the letter of 12 February?

PN108

MR MURDOCH: I don’t believe so.

PN109

JUSTICE GIUDICE: So paragraph 31 of Mr Robinson’s statement he says that Mr Acworth was given 24 hours to reconsider his position. Was that particularised? Was that dealt with in any more detail anywhere?

PN110

MR MURDOCH: Well, let me take you to the correspondence and let it speak for itself. Excuse me. At page 162 of the appeal book under tab 8.

PN111

JUSTICE GIUDICE: I was wondering if there was anymore information about paragraph 2 of that letter, of given a period of 24 hours.

PN112

MR MURDOCH: Yes. That’s, I think, in Robinson’s statement. If I can just go back to that.

PN113

JUSTICE GIUDICE: Well, he simply says that he doesn’t indicate the terms. It doesn’t say who gave him the 24 hours for example.

PN114

MR MURDOCH: No, it doesn’t. At 185 of the appeal book, that’s in
Mr Acworth’s statement, paragraph 22:

PN115

Mr Robinson told me I had 24 hours to change my mind.

PN116

JUSTICE GIUDICE: Yes.

PN117

MR MURDOCH: So at paragraph 51 the Senior Deputy President commenced a closer analysis of the employer’s argument. If we go over then to paragraph 60 the decision says:

PN118

Again it would appear that the unavailability of further work because of the imminent cessation of the testing tool project only arises as an allegedly genuine operational reason because the employee refused to accept the reassignment on the terms as offered. But for the dispute with the employee over the terms of the reassignment, the reason relied upon by the employer would not have come into existence independently. Given this it would be a contrivance to disassociate the two sets of circumstances such that they might constitute two discrete reasons. Properly characterised the reason relied upon the employer is unavoidably causally interrelated with the dispute over the reassignment, such that it can not constitute a discrete and therefore genuine operational reason.

PN119

Now, I dealt with that earlier in the context of the Senior Deputy President’s comments in paragraph 50, but the fact of the testing tool project coming to an end was there and it was there irrespective of what the outcome was of the attempts of the parties to negotiate a reassignment. Consequently it is erroneous to say that the testing tool project coming to an end had no independent character as a reason. In paragraph 61 the Senior Deputy President said:

PN120

In my view therefore, properly characterised, the reason for termination of the employee’s employment was his refusal to carry out a reasonable and lawful direction consistent with the terms of the contract of employment given by the employer for purposes of a further assignment of duties and not the operational requirements of the business as such. From this dispute all else followed consequentially.

PN121

In my submission that suffers from the same error as the other paragraphs that I’ve attacked. The failure of the parties to negotiate or arrange a further assignment of duties doesn’t change the underlying factor, namely that the project on which the man had been working was coming to an end. The Senior Deputy President - - -

PN122

SENIOR DEPUTY PRESIDENT HARRISON: Does paragraph 61 mean the Senior Deputy President was not satisfied that one of the reasons given by the employer was a genuine operational reason?

PN123

MR MURDOCH: I don’t think it means that, your Honour, because the earlier paragraphs that I’ve taken you to seem to suggest complete acceptance that the project was coming to an end, but the Senior Deputy President seems to have misled himself by considerations related to the unsuccessful attempts of the parties to find alternate employment. And really the attempts to find alternative employment were important steps, but nevertheless when they failed it brought the parties back to where they started. The parties wouldn’t have been looking for a reassignment if it hadn’t have been for the underlying fact that the testing tool project was coming to an end. They started from there, attempted to find a reassignable position, they failed and having failed, back they were to the underlying fact which was the ultimate reason, in my submission, for the termination.

PN124

It can be looked at another way. If you say that there’s an interconnection between cessation of the testing tool project and the failure to find a further assignment, it simply means that the reason for the termination was a dual or twofold, namely project coming to an end and the parties had failed to find a reassignment. Either way there is no conduct based reason. The two reasons, in my submission, are operational. The Senior Deputy President went on and in paragraph 64 he did some thinking out aloud. I say that respectfully. In the final sentence of that paragraph or the final two sentences:

PN125

That is the rejection of an assignment when an employee knocks back the prospect of another task. It might always amount to a termination of employment for a genuine operational reason, irrespective of the fact that the employer has only a conditional right to reasonably require an employee to carry out the other duties or tasks. This is because in all such cases the current assignment would be concluding which gave cause for the request to accept the further assignment.

PN126

To take the matter a little further I refer the Commission to some of the passages in the recent decision of the Full Bench in the Carter v Village Cinemas case. We have the authorities on the list of authorities to hand up. In paragraph 28 of the Village Cinemas case the Full Bench made a number of pertinent observations. They say:

PN127

We agree with Mr Ginnane that the operational reason relied upon by the employer need only be a ground or cause for the termination of the employment of an employee. It need not be something that demands or brings about an obligation to terminate the employment of a particular employee. The termination of employment of the particular employee does not have to be an unavoidable consequence of the operational reason for the limitation in section 643(8) to operate.

PN128

And if I can pause there. In this case the underlying reason of the test tool project coming to an end did not have an unavoidable consequence of the employment ending and that was because there was the prospect that the employer and employee may have been able to agree upon a reassignment. But the fact that termination of employment was not an unavoidable consequence doesn’t detract from the quality of the underlying reason as a reason which triggers 643(8). Now, in that paragraph the decision went on:

PN129

Consequently whether the employer could have done something other than terminating the employee’s employment will generally be irrelevant in deciding whether the termination was for genuine operational reasons or reasons that include genuine operational reasons. To pose the question whether the termination was a logical response to the employer’s operational requirements will also not necessarily assist in determining whether the termination was for genuine operational reasons. This may also be an appropriate question to pose in a consideration as to whether or not the operational reason advanced by the employer for the termination of employment of the particular employee was a sham or not. However, that question does not arise in this application.

PN130

I refer you to paragraphs 38, 39 and 40 of the Village decision. I don’t intend to read them out to you, but they set out there the factual background to the Village Cinemas case. We don’t, of course, suggest that the facts were on all fours, but they were sufficiently analogist to the present case to make an examination of the facts there useful. In that case it had been said against Village that they could have acceded to the employee’s request to take long service leave in the hope that whilst the employee was on long service leave an alternate position might have come up at another cinema complex and hence the comments at the foot of paragraph 38:

PN131

The refusal of Mr Carter’s request by Village did not convert what was otherwise a termination of employment of a particular employee for genuine operational reasons into one that was not for such reasons.

PN132

I’d also refer to the recent decision of the Full Bench in Cruikshank v Priceline Pty Ltd on page 8 of the decision part paragraph 30, a different full bench said:

PN133

The Commissioner approached the application of the test in section 643(8) and (9) in the correct way. It is accepted that the decision of the Full Bench in Village Cinemas properly sets out the nature of that test, but it is not clear that the Commissioner in fact applied it. Whether or not a termination of employment is for genuine operational reasons or for reasons which include such reasons is to be ascertained by an examination of the reasons for the termination of employment in question, rather than by identifying a generalised operational need to reduce employment.

PN134

I’ve dealt with the matter of leave in the outline. I rely on what’s being said there. I’ve also dealt with the matter of the errors which we contend are present in the Senior Deputy President’s decision. And we submit that if you accept that there are errors in the decision the Bench should examine the facts for itself and on the basis of the matters we have put forward should grant the application that my client had made in the notice of motion we set out the relief which is sought. Unless I can assist further they are our submissions.

PN135

JUSTICE GIUDICE: Yes, there was one thing about the nature of the decision. I see that you characterise it as the exercise of the discretion. It had occurred to me that it might be a case in that category of cases that where the issue is really one of jurisdiction. I mean, it involves the exercise of the discretion to the extent that it might involve fact finding, but in this particular case the reasons advanced by
Mr Robinson seem clear enough, subject to what we’re about to hear. If that were the case wouldn’t it simply be a question of law whether the reasons came within the test of 643(8), if that’s the right section? It may be a small point, I’m not sure.

PN136

I suppose if one way or another if we decide there’s error then that’s the end of it. But I wondered whether we weren’t under some duty ourselves in these circumstances to make the decision, bearing in mind the application simply can’t be made.

PN137

MR MURDOCH: That's right.

PN138

JUSTICE GIUDICE: If the test in 643(8) is - - -

PN139

MR MURDOCH: Look, there’s nothing that your Honour said that I disagree with, but if I have any further thoughts on the matter might I within 24 hours deliver a written memo to you and to my learned friend? But as matters stand your Honour’s formulation, I’d suggest, is the correct one.

PN140

JUSTICE GIUDICE: Well, what I was concerned about was that if it were accepted that the reasons advanced were the reasons, would it be sufficient if we would say well, it was open to the Senior Deputy President to conclude that they were genuine operational reasons or are we obliged to ourselves decide that question? I suppose that’s in a nutshell then, what prompted that question.

PN141

MR MURDOCH: My view would be that it’s the latter.

PN142

JUSTICE GIUDICE: I must say I had a tendency to that conclusion myself.

PN143

MR MURDOCH: Nothing further.

PN144

JUSTICE GIUDICE: Yes. Thank you. Mr Rebetzke, we might take a short adjournment of about 10 minutes.

PN145

MR REBETZKE: Certainly, your Honour.

PN146

JUSTICE GIUDICE: I assume that even with that adjournment we’ll probably finish by 1 o'clock. Is that your expectation?

PN147

MR REBETZKE: Yes, your Honour.

PN148

JUSTICE GIUDICE: Before lunch in any event.

PN149

MR REBETZKE: Yes certainly, your Honour.

PN150

JUSTICE GIUDICE: Yes, all right. We’ll adjourn now for about 10 minutes.

<SHORT ADJOURNMENT [11.12AM]
<RESUMED [11.24AM]

PN151

JUSTICE GIUDICE: Yes, thanks, Mr Rebetzke?

PN152

MR REBETZKE: Thank you, your Honour. Your Honours, Commissioner, the Senior Deputy President, in my submission, got the right result and my learned friend pointed to two paragraphs of the decisions being special to his case and that is paragraphs 46 and 47, page 11 of the appeal book. Those paragraphs, in my submission, are also fundamental insofar as they contain the relevant reasoning which suggests that the right result was obtained by the decision.

PN153

Your Honours will note at paragraph 47 that the finding is made that barring the employee's act of refusal he would have continued in the employer's employment usefully applying his skills in the manner conceived and designed by the employer by way of her re-assignment. It's not the case to say that the parties failed to negotiate a re-assignment. If your Honours would turn to the appeal book, page 148, that is the contractual document between the parties and at page 149, third paragraph down there is the clause of the contract that deals with the company's right to re-assign the employee to an alternative role in response to changing companies and/or the employee's own development and there's a reference to any re-assignment being consistent with qualifications, capabilities and experience.

PN154

It goes on and says:

PN155

Irrespective of such changes all terms and conditions of this agreement will continue to apply unless replaced by a new written agreement.

PN156

But the relevant words are those at the beginning of the paragraph:

PN157

The company may vary your duties.

PN158

There's nothing in those words that suggests that there has to be a successful re-negotiation of an alternative role. It suggests that it will be the company that will vary the duties and indeed, when one looks at the letter of re-assignment, which is at page 188 of the appeal book that's in fact what has happened. Your Honours will see that the second paragraph of that document, which is the one dated 24 January 2007 is headed, Re-assignment. Second paragraph:

PN159

Discussions aimed at optimising your next work assignment have been occurring and on behalf of Boeing Australia Limited I am pleased to confirm your re-assignment within the company as detailed below.

PN160

There's nothing in that document that says, "We offer you a re-assignment. We would like you to do it if you would like." It's couched in terms of, "This is your re-assignment," and in fact the case has always proceeded on the basis that that was a direction by the company. Of note, the second paragraph above the signature of Peter Robinson and Melissa Davidson:

PN161

All other terms and conditions of employment, as stated in your employment agreement, are unchanged.

PN162

So there's a continuing employment relationship, continuing employment contract. The acceptance down the bottom is also relevant. It isn't acceptance of any offer of re-assignment. It simply says:

PN163

I acknowledge receipt of this confirmation of re-assignment.

PN164

Very particular words and suggestive that it was in fact a directive that he will be - Mr Acworth would be re-assigned. All that was required was that he acknowledged receipt of that document. What transpired though is that
Mr Acworth indicated that he was going to be intransigent.

PN165

He referred to his contract and said that the re-assignment wasn't one that was consistent with his qualifications, capabilities and experience. However, that doesn't detract from the fact that when he became intransigent about that matter, the employer had already made the decision as evidenced by the re-assignment document, page 188, to re-assign him. That flows that they had work, that the employer had work for him to do within its structure, and that in fact if he had not indicated intransigence he would have, on the employer's evidence, gone and performed that work once the test tool work had been completed.

PN166

COMMISSIONER HOFFMAN: Mr Rebetzke, how does that sit with the position where an offer was made on two previous occasions, as I understand it, and both of them were rejected, I understand, by your client. So if you say on the one hand he was able to reject them, then there's a third position found and that really was then just a re-assignment of position, how does that sit?

PN167

MR REBETZKE: Yes, Commissioner. I think the evidence might be a little more murky about whether it was actually two offers prior to that.

PN168

COMMISSIONER HOFFMAN: Well, it's murky in the sense, as I read it, that on the one hand there's a suggestion that in terms of skills, capabilities, experience, it didn't line up, but there's no reference to that with respect to one or the other alleged offers. So was there in fact one position that was offered, that there was not a problem in terms of the criteria that it would have to meet in terms of the skills, qualifications, et cetera, or not?

PN169

MR REBETZKE: Yes, your Honour. I think this is dealt with a page 77 and 78 of the appeal book which is the transcript of cross-examination of Mr Acworth. At PN644 the question about an offer made to it, and it was apparently put to him:

PN170

There was something that was on the table but your view was that you weren't qualified for it.

PN171

I didn't have the experience to do the job. It was in a different programming language.

PN172

And there's a reference to discussions between him and Mr Hahns. There's reference to him going and speaking to Mr Hahns and then over the page, ultimately not hearing anything back about that matter and not receiving positive response. In answer to your question it seems that there was some discussion about between the employee and the employer about what re-assignment he might go to once the work on the test tool was completed.

PN173

However, there was no evidence of a written offer or certainly no evidence of a direction in terms of the document that I've taken you to previously, that paragraph at page 188, that's the first document of its type. Any offers referred to previously it seems were just that, offers, in an attempt to reach some sort of amicable solution to what at that time might be seen as an impending operational issue, but come 24 January it seems that the company made a decision to re-assign him.

PN174

Certainly there's no - it seems on the evidence that there wasn't any written offer prior to 24 January and in fact in my submission a letter of 24 January isn't in terms of an offer. So had there been offers previously, it's really, in my submission not relevant at the end of the day. What's relevant is that as at 24 January the employer made a decision to re-assign Mr Acworth.

PN175

COMMISSIONER HOFFMAN: Yes, thank you.

PN176

MR REBETZKE: Now, there is evidence that Mr Acworth was expected to sign the acceptance part of the letter of 24 January. That's at appeal book page 39 at line 245 and appeal book 54 at paragraphs 378. If I can invite your Honours to turn to page 54 because in my submission lines 378 through to 388 contain a key passage of evidence. Now, this is cross-examination of Mr Robinson:

PN177

You expected him to cooperate and sign the acknowledgement of acceptance of the document in setting out that assignment, correct?

PN178

That's correct.

PN179

If he had of signed that document he would be employed by Boeing today, correct?

PN180

Answer:

PN181

Failing other outcomes it would have enabled his ongoing employment.

PN182

And the question:

PN183

We don't know whether he would have still been doing the test tool or whether he would have started the re-assignment but he would be employed today? Correct?

PN184

And the answer is:

PN185

As I said, I would expect so.

PN186

The Senior Deputy President appears to have adopted that evidence by making the finding at paragraph 47 of his decision:

PN187

That following the act of refusal to accept his re-assignment, the employee would have continued in the employer's employment usefully applying his skills in the manner as conceived and designed by the employer by way of re-assignment.

PN188

So in my submission there are two key facts that are readily identifiable in this matter and the first is that a re-assignment decision was made and secondly, that if Mr Acworth had not been intransigent or indicate some intent to disobey that direction at a future time, he would have continued to be employed.

PN189

Now, the fact that he indicated that an intention that he wasn't happy with the direction and I'm not sure that at any stage it went as far as him saying that he would refuse to go and do the work. It seemed that he was expected to put his signature to this document which merely asked him to acknowledge receipt of this confirmation, he'd indicated that he wasn't happy, even if the evidence was to the effect that he intended to refuse to perform the work, then it doesn't follow from that that that work simply ceased to exist or that there was any change, to use the term or the definition of operational reasons, that there was any change to the economic, technological or structure of the employee's business.

PN190

When you think about it, just because an employee indicates some dissatisfaction, and I think the Senior Deputy President correctly identified as a conduct issue, just because he indicated that he wasn't going to do that work that was required of him didn't mean that that work wasn't available to be done. If it was the case that the work wasn't in fact available to be done, that raises the whole question of whether the whole thing was a sham, but the fact is the employer had re-assigned him, there was work for him to do in the re-assignment and had he not acted up, he would still be employed.

PN191

The reason for re-assigning him is a separate issue, altogether a separate reason. It's a reason for re-assignment. It can't properly be said that that is a reason for his termination because but for his misconduct, so characterised by the Senior Deputy President, but for his intransigence, he would have continued to be employed and doing the work in the re-assignment that was required of him by the employer. It seems trite to say that if the first question that needs to be addressed is what is the reason for the dismissal of the determination, that has to be determined and one of the - at least one - there are multiple reasons - at least one of the reasons must be an operational reason.

PN192

Perhaps it might assist your Honours if I hand up a bundle of - I won't refer to all of the material in the bundles, but there's more material in there by caution.

PN193

JUSTICE GIUDICE: Thank you.

PN194

MR REBETZKE: If your Honours were to turn to page 98, and you'll see that the entire bundle is numbered in the bottom right hand corner, the Full Bench in the Village Cinemas case in the course of its discussion of these matters at paragraph 35, the last sentence, observes that:

PN195

The operational reason must exist.

PN196

And then goes on and says:

PN197

It's not helpful to analyse the expression further or to determine whether the test is subjective or objective.

PN198

On that point her Honour stated at page 104 that it would seem from the comments in paragraph 5 of the Full Bench in the Priceline case that the test isn't subjective, or it's not entirely subjective. But the observation is that the operation must exist. If one turns to page 137, that's in the decision of Jane Owens v Whyalla Aged Care Incorporated, a decision of Commissioner Lewin given in Melbourne on 12 April 2007. The Commissioner, at page 137, refers to the same paragraph in Village Cinemas and at paragraph 84 goes on to say:

PN199

I take it from this that an operational reason must be based in proven fact and cannot be merely a matter of interpretive attribution.

PN200

Well, in this case the reasons advanced by the employer appear to be those contained in Mr Robinson's statement. However, the question is whether that's really a matter of interpretive attribution. The - - -

PN201

JUSTICE GIUDICE: Was it suggested to Mr Robinson that they weren't the reasons? In other words, were those passages, which I take it are the ones
that - roughly paragraphs 30 to 35 of his first statement - is that the passage you're talking about, Mr Rebetzke?

PN202

MR REBETZKE: Yes, your Honour.

PN203

JUSTICE GIUDICE: Was it suggested to them in the witness box that they weren't the reasons in fact? I know there were issues about what flows, but was that evidence challenged? You can come back to that if you want to.

PN204

MR REBETZKE: Yes, it's not something that I have an immediate answer to.

PN205

JUSTICE GIUDICE: Very well. Well, you continue with your submissions. It's something I'd be interested in in due course. My impression was that they weren't challenged as such, but that the argument was more about how one then characterises those reasons in terms of the statutory test.

PN206

MR REBETZKE: Yes, your Honour.

PN207

JUSTICE GIUDICE: Anyway, by all means come to that later. I think you were going to make some submissions about the reasons, the employer reasons.

PN208

MR REBETZKE: Yes, your Honour. I think that comes down to the question of whether the decision, or the reasons for the decision have to be looked at subjectively or objectively and whilst a subjective - on a subjective view, certain reasons are advanced by an employer, it doesn't necessarily follow that when closely examined that those reasons are genuine in the sense that they're real true or authentic reasons and in this matter I think it follows that they're not genuine because they're actually not operative reason - or it's not an operative reason for the dismissal, and I say that because but for Mr Acworth's conduct, let me put it that way, he would have continued to be employed.

PN209

The operational reasons, if I can put it that way, were entirely satisfied by the re-assignment, there was work for him to do, a decision had been made for him to be re-assigned to do that work. As a matter of logic, then those reasons can't be a reason for the termination.

PN210

JUSTICE GIUDICE: Well, when you couch it in terms of "but for", I'm not sure it's permissible to do that, but the same could be said in relation to the rundown of work on the project he was engaged in, but for that rundown the termination wouldn't have occurred either. I'm putting that as clearly as I might, but it seems that it's difficult to entirely disregard the role of the rundown the work in the project played in the circumstances overall.

PN211

MR REBETZKE: Well, it can be disregarded, your Honour, because a decision had been made to re-assign him.

PN212

JUSTICE GIUDICE: Yes, and you say that the reasons for the re-assignment decision aren't the reasons for the decision to terminate?

PN213

MR REBETZKE: That's correct, your Honour, and we're talking about an employee, not only an independent contractor who might have some say in what work he's to do, an employee who - the employer, presumably has the control over, or in fact as a matter of law does have control over this, so there's a directive that he go and do certain work. The fact that there is that work for him to do doesn't change by reason of the action on the part of the employee. One has to look at it from the point of - from the perspective of the organisation, that the reason has to be the reason of economic, technological, structural or similar nature relating to the employer's undertaking establishment service of business.

PN214

Well, Mr Acworth, having been re-assigned to perform other work between that re-assignment and his conduct, there was simply no change to the economic technological structure of the employer's business.

PN215

JUSTICE GIUDICE: No. But let me give you a hypothetical example. If there'd been no suggestion of re-deployment or re-assignment, the employer had simply said, "Well, the project is coming to an end, that's going to end on 1 March", or some date, "in consequence of that we're going to terminate your employment in accordance with the contract." Whether that was permissible or not, would not that be a termination for genuine operational reasons?

PN216

MR REBETZKE: Yes, your Honour.

PN217

JUSTICE GIUDICE: So the fact that the project - I know there's some issues in the evidence about exactly when it was going to finish, but the fact that the project was running down, potentially is indicative of a structural reason or an operational reason that might justify termination?

PN218

MR REBETZKE: Well, except that the decision had been made to re-assign him and has to look at the evidence in total about the nature of the undertaking, the fact that these engineering projects are broken down into small components and that all engineers apparently at Boeing, it's expected that they'll move from assignment to assignment. Their contract specifically provides for that. The evidence is that it's contemplated that when an engineer goes into Boeing they'll have a career there notwithstanding that they'll be moved from assignment to assignment to assignment.

PN219

The fact that the work that he was completing on a particular assignment is really something unremarkable when you look at the structure of the business and the nature of the undertaking.

PN220

JUSTICE GIUDICE: Was it common ground that normally there would be re-assignments at the end of each project - assignment?

PN221

MR REBETZKE: There was some evidence on that point, your Honour. Excuse me one moment.

PN222

JUSTICE GIUDICE: There's the contract itself, I think, which permits it.

PN223

MR REBETZKE: Yes, and I think at page 28 of the appeal book, at about page 28 and the pages before and after, but particularly at line 126:

PN224

And each of those contracts in fact has implicit that the company will re-assign them from time to time?

PN225

Answer - - -

PN226

JUSTICE GIUDICE: I'm sorry, what page was that?

PN227

MR REBETZKE: Page 28, appeal book, your Honour, at line 126.

PN228

COMMISSIONER HOFFMAN: What difference, if any then, is there between that statement and the contracts you referred to and the documents contained at pages 196 and 197 of the appeal book talk about transfers, one dated 9 February '05, the other 16 May '05, both signed by your client, as opposed to the wording in other documents referring to secondments?

PN229

MR REBETZKE: Well, your Honour, the documents at page 196 and 197 are interesting, not only for the fact that they refer to transfers, but for the fact that it appears that there were offers and acceptance.

PN230

COMMISSIONER HOFFMAN: Offers and acceptance, yes, I see.

PN231

MR REBETZKE: Which contrasted with what this re-assignment.

PN232

COMMISSIONER HOFFMAN: But I'm asking you know, then what difference is there, apart from the obvious, in the terminology used, what in practice does that mean for that particular employer?

PN233

MR REBETZKE: I'm not sure there was evidence on the distinction between transfer and re-assignment. I see that the document at page 198 refers to a secondment.

PN234

COMMISSIONER HOFFMAN: Yes, different again, exactly.

PN235

MR REBETZKE: A different concept.

PN236

COMMISSIONER HOFFMAN: Yes. Not signed.

PN237

MR REBETZKE: Certainly it seems that the evidence proceed on the basis that there was really no material difference between the transfer situation and the re-assignment situation. If your Honour looks at the document of page 207, that is a summary document put through Mr Acworth.

PN238

COMMISSIONER HOFFMAN: Yes, I've looked at that.

PN239

MR REBETZKE: Where really his chronology of assignments is set out and described as such.

PN240

COMMISSIONER HOFFMAN: That's why I was questioning is there
some - does it mean the same term in terms of the usage it has within the organisation?

PN241

MR REBETZKE: I'm not aware that it means anything differently, your Honour. But an interesting point, but I'm not sure that I can answer that having regard to the evidence that was adduced.

PN242

JUSTICE GIUDICE: Mr Rebetzke, what would the argument be about in this case, assuming that you successfully upheld the appeal, what would your client's case be in general terms?

PN243

MR REBETZKE: Well - - -

PN244

JUSTICE GIUDICE: I don't mean the detail.

PN245

MR REBETZKE: One point is one that your Honour alluded to earlier, in questions with my learned friend, and whether there was evidence that termination of employment was in contemplation. So whether Mr Acworth was sufficiently on notice that, at the end of 24 hours, if he didn't sign the document, he'd be marched off the premises, there may also be an agitation of the - well, I think that's as far as I can put, the reasonableness of the action taken to terminate him at that point in time.

PN246

I've addressed the question of paragraphs 50 through to 60 of the Senior Deputy President's reasons in my outline. In my submission, whilst those paragraphs are an interesting discursion, they are really properly to be regarded as obiter dictum to the decision and do not add anything to the decision. The result which, in my submission, follows particularly from those two key facts that I outlined previously, that the re-assignment decision had already been made and that he would have - that Mr Acworth would have continued to be in employment but for his conduct.

PN247

So in my submission, for there to be genuine operational reasons you have to look at what were the reasons for the termination rather than any antecedent reasons which are unrelated and in my submission, the reasons for the re-assignment are really unrelated to the termination of employment. You have to look at, examine closely the reasons for the termination of the employment. Secondly, once you've established what those reasons are, you need to look at whether any of those are of an economic, technological, structural or similar nature relating to the employee's undertaking.

PN248

It's submitted that there was no change to economic, technological or structure matters between the re-assignment and the conduct and any objective reason that is left must be found to be, in an objective sense, must be found to be real, true or authentic in that it's genuine. A reason that's advanced by the employer cannot be real, or genuine in the sense of real, true or authentic if it isn't in truth a reason for the termination and that's really the nub of my argument.

PN249

SENIOR DEPUTY PRESIDENT HARRISON: Is that - two issues, a motivating reason and a contract issue and the two considerations arise in light of what you've said, because I thought that the exercise of the Commissioner is that which is referred to in 649(2):

PN250

After hearing the evidence the Commission has to be satisfied that the operational reasons relied on by the employer were genuine.

PN251

That's the outcome of the hearing.

PN252

MR REBETZKE: Yes, your Honour. They can't be genuine if in fact they weren't reasons, true reasons, or the operative reasons for the termination.

PN253

SENIOR DEPUTY PRESIDENT HARRISON: Yes, but we're still talking about the mind of the employer at the moment. We haven't yet got into the area of the contract, legal principles associated with the contract of employment, have we?

PN254

MR REBETZKE: I'm sorry, your Honour, I - - -

PN255

SENIOR DEPUTY PRESIDENT HARRISON: I don't know that I'm putting it very well at all, so don't be sorry. In order to achieve the position you wish to persuade us of, was it necessary for the Commissioner to make a finding that insofar as one of the reasons of the employer was the (a) reason, that was not a genuine operational reason, and to the best of my knowledge, she made no such finding? Do you need to jump that hurdle or not?

PN256

MR REBETZKE: The (a) reason being?

PN257

JUSTICE GIUDICE: The one in 35(a).

PN258

SENIOR DEPUTY PRESIDENT HARRISON: Yes, the 35(a). The Mr Robinson, 35(a) and (b) reason and that that question relates to (a).

PN259

MR REBETZKE: My argument is that whilst that - well, it's really common ground that his previous assigned role was about to come to an end and while that might subjectively be in the mind of the employer, the question is whether, viewed objectively, that is a real true or authentic reason for the termination of employment. Now, it's certainly a real, true or authentic reason for the re-assignment, but in my submission it isn't a real, true or authentic reason for the termination of employment.

PN260

The final matter that I'd like to take your Honours to is the issue raised with my learned friend last, and that's the nature of the appeal.

PN261

SENIOR DEPUTY PRESIDENT HARRISON: Yes.

PN262

MR REBETZKE: I think that ultimately a determination needs to be made as to what is the - in terms of genuineness - what is the real true or authentic reason. Section 649(3) states that:

PN263

Subject to any right of appeal to a Full Bench a finding by the Commission that it is not satisfied that the operational reasons relied upon by the respondent were genuine, final and binding.

PN264

In my submission that raises a discretion of the Commission in determining whether the reasons relied upon by the respondent were real, true or authentic - I use those words from Village Cinemas - - -

PN265

SENIOR DEPUTY PRESIDENT HARRISON: They're actually out of the dictionary, I think.

PN266

MR REBETZKE: Yes, as applied in Village Cinemas.

PN267

SENIOR DEPUTY PRESIDENT HARRISON: Yes.

PN268

MR REBETZKE: If it's of assistance, it's page 95 of the material that I've handed up. The dictionary definition is referred to and then the Full Bench says:

PN269

We agree with Mr Ginnane that the reason for termination of the employment of the particular employee can be genuine in the sense it was real, true or authentic, not counterfeit -

PN270

et cetera.

PN271

SENIOR DEPUTY PRESIDENT HARRISON: I rather thought the problem in this case was slightly different, that it's a genuine reason. There doesn't seem to be much doubt about that, that that's what he based his decision on, but the question is, is it an operative reason - I'm sorry - is it an operational reason? It's not suggested that this is counterfeit, that he's dreamt this up or something, is it? It was true in his mind, but the question is, was it operational in nature or is it something else?

PN272

MR REBETZKE: Well, your Honour, there are two steps, in my submission.

PN273

SENIOR DEPUTY PRESIDENT HARRISON: Yes.

PN274

MR REBETZKE: The first is, is whether it was operative, and the second, whether it was operational.

PN275

JUSTICE GIUDICE: Well, nobody suggested to him so far as I'm aware that he was lying or that he didn't have that in his mind when he made the decision?

PN276

MR REBETZKE: No, your Honour, but on an objective view, it cannot be said that that reason, even if subjectively held in good faith, was a real reason for the termination for the reasons I've outlined, that had he behaved, he would have continued to be employed. So that's the first point, whether it was operative. The second question is, whether it was an operational reason and one then has to look at the definition of operational reason and my argument in that respect is that there's been no change to the structure of the business between the re-assignment and the conduct of the employee.

PN277

In my submission, the reason advanced by the employer fails at both hurdles, that it's really a three step decision making process in my submission. One, what are the operative reasons. Two, are any of those reasons properly characterised as operational reasons in the sense that they're reasons of an economic, technological or structural or similar nature, and then thirdly there's this objective test that any operational reasons that are left, whether they were genuine in the sense of were they real, true or authentic reasons.

PN278

So in my submission the final test involves some measure of discretion, that the principles in House v The King would apply and additionally in respect of leave to appeal, I've made some submissions in my outline which I adopt concerning section 649(3) which is essentially a finality provision. It refers to the finding of the Commission being final and binding, subject to any right of appeal. There is no right of appeal to the Full Bench. There's only allowance for an appeal to be made with leave of the Full Bench, subject to the section that says:

PN279

The Full Bench shall give leave in those category of cases where the matter is of such importance, in the public interest, that leave should be granted.

PN280

JUSTICE GIUDICE: That's discretionary too. It requires the formation of an opinion.

PN281

MR REBETZKE: Yes, your Honour is quite correct, and that helps me - - -

PN282

JUSTICE GIUDICE: I don't think so, because it suggests that there can never be a right of appeal. In other words, that where the section 649(3) talks about "subject to any right of appeal" it simply operates so that there can never be an appeal.

PN283

MR REBETZKE: Yes, your Honour.

PN284

JUSTICE GIUDICE: I must say when I read that I thought it was perhaps a slightly technical reading of the phrase "right of appeal".

PN285

MR REBETZKE: Yes. I take your Honour's point in that regard. Ultimately my submission is this, that this case really turns upon its peculiar facts and facts that I would contend, of course, are the two key facts, that the re-assignment decision had been made and that, but for the conduct, he would have continued to be employed, and given those facts, the Commission's decision achieved the right result and that accordingly the appeal should be dismissed and/or leave not granted. Unless there's any further matters, those are my submissions.

PN286

JUSTICE GIUDICE: Thank you, Mr Rebetzke. Mr Murdoch, anything in reply?

PN287

MR MURDOCH: Just some short points, if I may. On the submission that my learned friend made re genuineness, in my submission the genuineness test is one to be applied to the reasons advanced by the employer and to use the facts in the present matter to illustrate what I mean, if one goes to the (a) and the (b) in paragraph 35 of Mr Robinson's statement, paragraph 140 of the appeal book, one looks at (a) to see whether that's real and genuine, and when one does we see that it should be regarded in that real and genuine sense because that's what Mr Robinson said was the case, namely that the assigned role was about to come to an end and Boeing had no further use for an employee in that role, and likewise, Mr Acworth said exactly the same thing, so that it's quite erroneous to say that (a) is not real, is not genuine.

PN288

Again, without going into the evidence, what I mean by both sides accepting it, is that if you look, for example, at appeal book page 77, you see at PN647, when Mr Brent Acworth was being cross-examined by Mr Chris Murdoch:

PN289

Is that because you had a desire to work in his area?

PN290

No. That's because my task was essentially coming to an end. So I was sort of trying to take initiative on my own accord to line up some work after that task. I thought it was fair to do that.

PN291

Then in relation to 35(b) in Mr Robinson's statement:

PN292

Mr Acworth had failed to accept any of the available alternative positions available to him. He had insisted that the only role he would undertake was the role which was ending.

PN293

Well, again, even on my learned friend's case here today, he uses the word "intransigence" to describe his client's conduct. So that reason (b) in my submission is clearly real, clearly true, clearly genuine. So any attempt at an attack on the basis of lack of realness, genuineness, et cetera, must fail in my submission, in my respectful submission.

PN294

JUSTICE GIUDICE: Mr Murdoch, one of the submissions which was made, which I'm not sure whether you've dealt with specifically and it may be you intend to, but it was this question of the accepted procedure or practice where an assignment finished. Mr Rebetzke made the submission there was an expectation that there would be a re-assignment and that this was reflected in the contract and he took us to a passage in transcript. The purpose of that seemed to be to, as it were, take away any necessary connection between the completion of an assignment and termination of employment. Do you have any submission to make about that?

PN295

MR MURDOCH: Yes. It's best to take you, I think, to page 137 of the appeal book and this is in Mr Robinson's statement under tab 8. He deals with that very point. What he said was:

PN296

When a comparable position is identified the employee will be re-assigned to it. If a comparable position cannot be identified, or the employee is unwilling to accept the available re-assignments, the only alternative is for the employee to leave the organisation. Depending on the circumstances in which this occurs, the employee may be entitled to a severance benefit.

PN297

Et cetera, et cetera, et cetera. So that the first approach is to look for a position to which the employee can be re-assigned. Failing that, clearly the position was that the employee was to leave the organisation. That should be seen too in the context of the earlier explanations that he gave as to the nature of engineering projects, how they expand and contract, they start, they finish, the role of the engineers on those projects, and I took you to that evidence earlier.

PN298

On page 29 of the appeal book, PN134 when Mr Robinson was being cross-examined by Mr Rebetzke, it's quite a long question, but you'll see in the answer, that policy is in play regardless whether it's referenced:

PN299

And you're right, we wouldn't typically look to that policy except where opportunities for re-assignment were exhausted.

PN300

My learned friend has put forward the proposition that the focus should be on whether there was a structural change in the business between the making of the offer of re-assignment or the direction to re-assign and the refusal of it, in my submission that's an unnecessarily restrictive interpretation. The word in the legislation is not restructure, but structure, and there's also a reference to economic.

PN301

Given the evidence that Mr Robinson gave in relation to the nature of engineering projects, the movement of engineers from role to role, the reason in (a) and (b), as we've been to several times, is clearly in my submission operational because it's directly related to the structure of Boeing's business, being a contracting concern with the contract being based on projects and the engineers assigned to particular projects, all of which have an end, so that clearly it's structural and clearly, because it is a business, there are economic factors in that one should, I suggest, assume that any prudent employer endeavours to run a business in an economic and efficient way. Nothing further, thank you.

PN302

JUSTICE GIUDICE: Mr Murdoch, just one other question that has been occupying my thoughts a little. I find it a bit strange that there was no reference to termination of employment before the actual termination occurred. We haven't seen Mr Robinson in the witness box, obviously, so we're not in a position to make any findings against the evidence he's given, but it still seems to me rather odd that the rundown in work could be a genuine operational reason for the termination, yet termination apparently hadn't been - or at least there's no evidence that termination had even been contemplated, on that account, that is.

PN303

MR MURDOCH: Well, it needs though, your Honour, to be seen in the context of what had been going on over several months and you will recall I took you a little earlier to the passage where Mr Acworth said that he'd, on one occasion, raised with one of his superiors an option because he knew that the task he was on was coming to an end. So it's not as if that came as a bolt from the blue.

PN304

JUSTICE GIUDICE: The termination had never been in contemplation, had it?

PN305

MR MURDOCH: Well, except for the fact that there was an ultimatum. He was given 24 hours to re-consider his position and in my submission when one gets to the ultimatum stage, after several months of parties attempting to find a replacement assignment, correspondence is sent to the employee, "Here's your new assignment." Then the employee's response, and I'll just take you to that. Just excuse me.

PN306

JUSTICE GIUDICE: Yes.

PN307

MR MURDOCH: This is page 160 of the appeal book. That letter really was a very firm declaration on the part of Mr Acworth as to where he stood and if we look at page 140 of the appeal book, Mr Robinson's statement again, the relevant paragraphs are 30, and I'll pause so you can read that, 30, 31, 32, 33. So it's true, your Honour, that no one used the explicit word "termination of employment", but what is abundantly clear is that matters have built up over a period of months and Mr Acworth was well aware of the impending run-out of the task that he'd been doing and the parties were clearly at loggerheads and in my submission the 24 hours to reconsider his position was as good as a warning that something radical was about to occur.

PN308

It's necessary in some cases, not to put too much stock on the existence on the particular form of the words, but to look at the history of the relationship and the history of the relationship, as I've said, was one that had built up over several months and had led to that position of climax, if one can put it in those terms and the climax, of course, was the ultimate outcome of the operational reason (a) that Mr Robinson deals with. If the Commission pleases.

PN309

JUSTICE GIUDICE: Yes, thank you. Thank you both for your submissions. They've been very helpful. It will be necessary to reserve our decision and we shall adjourn.

<ADJOURNED INDEFINITELY [12.39PM]