WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES COURT

PARTIES Glenn James Ross

CLAIMANT

-v-

Corruption and Crime Commission

RESPONDENT

CORAM INDUSTRIAL MAGISTRATE G. CICCHINI

HEARD Wednesday, 25 July 2007, Wednesday, 20 June 2007, Wednesday, 16 May 2007

DELIVERED Thursday, 26 July 2007

CLAIM NO. M 20 OF 2007

CITATION NO. 2007 WAIRC 00960

CatchWords Employee employed under section 179 of Corruption and Crime Commission Act 2003; Government Officer; Termination; Whether there was a redundancy as defined by section 40(2) of the Minimum Conditions of Employment Act 1993; Reclassification; Action that is likely to have significant effect on an employee; Nature of employer’s obligation to inform and discuss; Whether offer to discuss is sufficient; Whether discussions held at the employees initiative cures any failure on the part of the employer to comply with section 41 of the Minimum Conditions of Employment Act 1993

Legislation Minimum Conditions of Employment Act 1993.

 Public Sector Management Act 1994.

 Corruption and Crime Commission Act 2003.

 Industrial Relations Act 1979.

 Interpretation Act 1984

Cases Cited Nil

Cases referred to

in decision Garbett v Midland Brick Company Pty Ltd (2003) 83 WAIG 893

 Roxstead Holdings Pty Ltd v Oliver (2004) 84 WAIG 1064

 Waugh v Kippen and Another (1986) 160 CLR 156.

Result The claim is made out

Representation 

Claimant Mr G R Ross in person

Respondent Mr M Holler (of Counsel) instructed by Talbot Olivier, Lawyers appeared for the Respondent

REASONS FOR DECISION

Employment of Mr Ross by the Corruption and Crime Commission

1         The Claimant, Glenn James Ross was, by a written contract of employment dated 22 November 2004, appointed by the Corruption and Crime Commission (the Commission) to the position of Manager, Corruption Prevention, Education and Research, a Level 9 position within the Respondent’s organisation.  Mr Ross was appointed in accordance with section 179 of the Corruption and Crime Commission Act 2003 (the CCC Act).  His appointment to the Level 9 position was for a term of five years from 8 October 2004 until 7 October 2009; however, each party had the ability to terminate the employment by giving to the other one month’s prior written notice.

2         It is important to note that section 179(3) of the CCC Act provides that staff are not to be employed under Part 3 of the Public Sector Management Act 1994 (the PSM Act).  Given that the purpose of the CCC Act is inter alia “to improve continuously the integrity of, and to reduce the incidence of misconduct in the public sector” (see section 7A(2)) it necessarily follows that Commission employees will, by reason of the need to be independent, not be public service officers.  However, notwithstanding that, pursuant to section 180(1), any public officer appointed to the staff of the Commission is entitled to retain all accruing and existing rights as if service as an officer of the Commission were a continuation of service as a public service officer.  Section 180(2) provides that if a person ceases to be an officer of the Commission and becomes a public service officer, the service as an officer of the Commission is to be regarded as service in the public service for the purposes of determining that person’s rights as a public officer.

3         Section 180(3) of the CCC Act provides that if an officer, immediately before appointment under section 179, was a permanent officer under Part 3 of the PSM Act and that person ceases to be an officer of the Commission other than by dismissal for substandard performance, breach of discipline or misconduct, that person is entitled to be appointed to an office under Part 3 of the PSM Act of at least the equivalent level of classification as the office that person occupied immediately prior to appointment under section 179 of the CCC Act.

4         Prior to his appointment pursuant to section 179 of the CCC Act, Mr Ross held a substantive position with a Level 7 classification under Part 3 of the PSM Act notwithstanding that he was acting in a higher classification.

History of the Events Giving Rise to the Dispute and the Claim

5         In late 2005 the Commission consulted with the Claimant and other employees with respect to a restructure of the Corruption Prevention Education and Research Directorate (CPER).  A number of drafts were prepared.  Each of the drafts seen by Mr Ross maintained his Level 9 position intact.  Furthermore, based on a document released by the Executive Director of the Commission in about October 2005, Mr Ross understood his position not to be at risk.  Accordingly leading up to the week before Christmas in 2005, at which time Mr Ross took leave, he was under the impression that any restructure to be implemented would not have any significant effect upon him or his position.

6         On 16 January 2006 when he returned to work following leave, he found a letter on his desk dated 16 January 2006 from the Commission’s Executive Director which stated:

AMENDMENT OF JOB DESCRIPTION FORM - MANAGER, CORRUPTION PREVENTION, EDUCATION & RESEARCH, LEVEL 8

Following a review of the structure of the Corruption Prevention, Education and Research (CPER) Directorate, including a period of consultation, I wish to advise you that the position you occupy has been reclassified.  As part of the review it has been determined to amend the classification of this new position to Level 8.  The previous title of the position has been retained.  A copy of the revised job description form (JDF) is attached for your information.

As per previous verbal advice, your remuneration will remain at Level 9 (the level to which you were appointed) during the life of the current contract.  Accordingly, you will be entitled to the privileges afforded officers at that level, including access to the Government Vehicle Scheme.

The CPER Directorate will now operate within three (3) teams, each supported by a manager reporting to the Director, CPER.  Your position as manager will be to continue with the activities contained within your JDF as part of this new structure, including the management of senior consultants.  I encourage you to discuss your continuing role within CPER with your Director.  These changes take effect immediately.

All other terms and conditions of employment remain unchanged.  Should you wish to discuss matters pertaining to your terms and conditions of employment, please contact Sunil Narula, Manager, Human Resources & Planning on ………….. .

I also note that a confidential counselling service is available for all Commission staff, and is available to you. If you wish, please contact ORS Employee Support on …………. .

7         On 17 January 2006 Mr Ross gave his employer notice of his grievance with respect to what had transpired and particularly how it affected him.  He complained that he had not been consulted and had no opportunity for input into the decision to reclassify his position.  He indicated that he was not in agreement with the unilateral decision to change his contract of employment.  He stated inter alia:

6.    I have a common law contract with the Commission for employment at a classification of Level 9 performing work at the value of Level 9 and with the status of Level 9.  What has taken place is, in my opinion, a breach of contract on behalf of the CCC.

7.    The changes to my contract of employment would be disadvantageous to me in my employment and career.

8         Mr Ross sought a meeting to discuss the matter and to attempt to find a satisfactory solution.

9         Meetings were subsequently held on 25 and 31 January 2006.  It suffices to say that those meetings did not resolve the dispute.  During the course of February 2006 Mr Ross corresponded directly with Commissioner Hammond concerning his situation which ultimately resulted in the Commissioner writing to him on 10 March 2006.  The Commissioner advised that the Commission intended to maintain the structure of CPER as presented on 16 January 2006, however notwithstanding that, that the Commission was, without prejudice, prepared to offer a choice of two options in full and final settlement of the matter.  Commissioner Hammond set out the options as follows:

1.    The position that you occupy shall be reclassified to Level 9 and be retitled: Senior Manager, CPER, to differentiate this position from the two Level 8 positions.  A job description form commensurate with the new work value and responsibility shall be developed in conjunction with the Director, CPER and yourself to reflect this.

Importantly, the new three-team structure shall remain in place whereby each manager and the position of senior manager shall report the outcomes of their team to the Director, CPER.  That is, each Manager, CPER, Level 8 will not report through the proposed Senior Manager, Level 9 to the Director, CPER (refer attached).

Prior to the conclusion of your current contract (7 October 2009), an assessment of the efficiencies and effectiveness of the structure of the CPER Directorate, in delivering its core responsibilities, shall be undertaken by the Commission.

2. Alternatively, with your consent, the Commission will facilitate registration for redeployment through the Department of the Premier and Cabinet (DPC).  Should you seek to exercise this option, it would be on the understanding that your registration for redeployment will occur at your substantive public sector level (Level 7).  Further, in doing so, you shall extinguish the contract of employment with the Commission.  That is, you would cease to be paid at Level 9 (with associated benefits) from date of redeployment registration.  This approach is based on advice from DPC.

10      Following further discussions Mr Ross, on 20 March 2006, sent an internal memorandum to the Acting Commissioner rejecting the Commissioner’s proposal and making counter proposals.  He indicated that his preferred options were to have the unexpired portion of his contract paid out or alternatively to be redeployed to the public service as a Level 9.

11      On 22 March 2006 Mr Ross informed his superiors that he would be taking sick leave to facilitate a number of medical tests.  He anticipated that his sick leave would run into booked annual leave.  He indicated that he was anxious to resolve the dispute and therefore was willing to attend meetings and exchange correspondence during the period of leave.

12      It is important to note that between 16 January 2006 and when Mr Ross went on leave he presented to work and indeed did work as Manager of CPER but failed or refused to accept that he was employed in the Level 8 position.  He expressed the view that he continued to be employed in the Level 9 position.

13      During the course of April, May and into June 2006 Mr Ross was on a period of extended sick leave on account of depression and stress resulting from the Commission’s decision and actions in relation to the restructure.  Little happened during that period until 16 June 2006 at which time Commissioner Hammond wrote to Mr Ross seeking the return of a mobile telephone, corporate credit card, cab charge card and the vehicle in his possession by 30 June 2006.

14      By letter to Commissioner Hammond dated 21 June 2006 Mr Ross took issue with the Commissioner’s requirement.  On 22 June 2006 Commissioner Hammond wrote to Mr Ross reiterating his requirement on the basis that there was no operational need for Mr Ross to retain possession of the assets whilst on extended sick leave.  Subsequently on 26 June 2006, following a meeting with Mr Ross, Commissioner Hammond agreed to extend the deadline for the delivery of the assets to 17 July 2006.  The assets were not returned by the due date resulting in the Commissioner again writing to Mr Ross directing that the assets be returned.  He set a new deadline, being Monday, 24 July 2006.  The assets were eventually returned during the extended period.

15      By letter to Commissioner Hammond dated 29 June 2006 Mr Ross advised that he was able to return to work on a graduated basis and subsequently on 12 July 2006 he wrote to Commissioner Hammond to advise that he was fit to trial full time employment at another work location or in the Operations Directorate of the Commission but was not able to work in his pre-disability environment or occupation.  On 21 July 2006 Mr Ross wrote to Commissioner Hammond to advise that he would return to work on Monday, 24 July 2006.  That drew a response from Commissioner Hammond by letter dated 21 July 2006 that, given his inability to undertake his duties, he should not attend the Commission’s premises for work until otherwise advised.

16      In the process of delivering assets of the Commission on 24 July 2006 Mr Ross attended the Commission’s office and whilst there discovered that there was a vacancy in the Level 9 position of Manager, Investigations within the Operations Directorate.  Upon his return home that day he wrote to Commissioner Hammond asking that the position not be filled so that an assessment could be made as to whether the position would be suitable for Mr Ross.

17      Thereafter in late July and early August 2006 various correspondences passed between Mr Ross and the Commission concerning his return to work and redeployment.  It suffices to say that the parties remained in dispute with respect to those issues.

18      On 16 August 2006 Mr Ross attended the Commission’s office for the purpose of returning to work, however he was placed on administrative leave and told to stay at home on full pay until further notice.  Mr Ross subsequently again wrote to Commissioner Hammond on 18, 20 and 25 August 2006 indicating his desire to return to work.

19      On 31 August 2006 Commissioner Hammond wrote to Mr Ross informing him that he would soon receive detailed advice from the Commission and that upon consideration of the same Mr Ross would be provided with an opportunity to meet Commission representatives with his legal adviser present.

20      On 1 September 2006 Acting Commissioner Shanahan wrote a lengthy letter to Mr Ross addressing various issues.  With respect to the issue of the CPER Directorate restructure he explained that following the receipt of legal advice the Commission was of the view that the effect of the Commission’s letter to Mr Ross dated 16 January 2006 was to terminate his appointment to the Commission’s staff on the grounds of redundancy.  He explained that it had been the Commission’s intention to employ Mr Ross in the newly created position of Manager, Corruption Prevention, Education and Research, Level 8 in the restructured Directorate in accordance with the duties set out in the revised job description form, but otherwise on the same terms and conditions, including as to remuneration, as the Level 9 position.  The offer of employment in the Level 8 position could not take effect until accepted.  Mr Shanahan went on to say:

The Commission acknowledges that the letter of 16 January 2006 implemented significant changes to your employment in the Level 9 position that were made without your agreement, and amounted to a termination of the Level 9 position.  Further, the Commission had an obligation under clause 19.1 (sic, 20.1) of the contract and clause 8(2)(b) of the GOSAC Award that was incorporated into the contract to give one month's notice of termination by the Commission.  In view of these matters, the Commission accepts your position that the letter of 16 January 2006 amounted to a repudiation of your contract for the Level 9 position.

21      Mr Shanahan went on to say that although the Commission acknowledged that Mr Ross was entitled not to accept the repudiation of the contract of employment, it was not obligated to offer him employment in the Level 9 position or otherwise.  He said that notwithstanding that the contract may remain alive; the employment relationship was terminated by the repudiation.  For those reasons Mr Ross could not and would not be taken back to work in the Level 9 position.  Mr Shanahan informed Mr Ross that the offer to employ him in the Level 8 position was withdrawn and that the Commission was under no obligation to transfer him within the Commission to a new Level 9 position.

22      Mr Ross was advised that because the cessation of his office occurred by reason of redundancy that he was, under section 179(1) of the CCC Act, entitled to be appointed to a public service office under Part 3 of the PSM Act of at least the equivalent level of the substantive classification held immediately prior to appointment (Level 7).  Mr Ross was further informed that the Commission considered that he was only entitled to receive Level 7 entitlement effective twelve weeks after the redundancy took place until his redeployment and that accordingly he had been overpaid.  Notwithstanding that, the Commission would not seek to recover the overpayments.  He was given notice that he would only be paid at the Level 7 rate from the date of the letter until redeployment.  He was also told that he would no longer be permitted to use Commission assets.

23      Acting Commissioner Shanahan made it clear to Mr Ross that he had not been stood down by the Commission but rather that subsequent to his rejection of the Level 8 position offered he had not held an office from which he could be stood down.

24      Although the Acting Commissioner in his letter went on to address other issues; it will not be necessary for me to discuss them as they are not relevant to the matters in issue in this case.

25      On 4 September 2006 the Executive Director of the Commission sent an email to all Commission staff indicating that on that day the Commission had advised Mr Ross of its decision to unilaterally cease his employment.  Staff was advised that Mr Ross was no longer an officer of the CCC (the Commission) and had reverted back to the public service.

26      Acting Commissioner Shanahan’s letter of 1 September 2006 drew a quick response from Mr Ross.  In his reply by letter dated 5 September 2006 Mr Ross pointed out that it contained “misrepresentations of fact and errors in application”.  In particular he pointed out that the Commission’s view expressed on 1 September 2006 was inconsistent with and contradicted earlier written advice received.  In that regard Mr Ross drew the Commission’s attention to an email received on 31 January 2006 (exhibit 6) in which Mr Sunil Narula, on behalf of the Commission, said:

. . . I advise that the position that you occupied was re-classified (not abolished) from Level 9 to a Level 8, with a change of duties as detailed within the revised JDF.  Accordingly, you are not a redeployee or were at anytime surplus.  You remain as occupant of the position of Manager, CPER now classified at Level 8.

27      Mr Ross then went on to point out:

My actions to date have been in accordance with this earlier written advice.  I believe it to be unconscionable for the Commission to attempt to use exculpatory ex post facto justificatory explanations for its earlier actions.

28      Mr Ross also complained:

 Throughout this matter I have acted in a professional manner in bringing shortcomings in the Commission’s conducting of the CPER review, and the outcomes of that review, to the Commission’s attention.  Whereas the Commission acted in the belief that it had a legal and legitimate basis for its conduct, it now knows, by its own admissions, that it acted ultra vires its powers in breach of my contract of employment.  Rather than being thanked for bringing this to the attention of the Commission, I have been treated as a “whistleblower” with all of the pejorative connotations that that entails.   . . .

I believe that the message is clear for all other employees of the Commission – do not raise legitimate concerns about the practices of management of the Commission with the Commission itself, lest you suffer the consequences.   . . .

29      On 8 September 2006 Mr Ross sent the Commission an email indicating that he was prepared to meet with the Commission’s representatives.  He indicated that he would be accompanied by his lawyer at that meeting.

30      On Monday, 11 September 2006 Mr Mark Hemery of Talbot Olivier, Lawyers wrote to Mr Ross’ lawyer on behalf of the Commission.  He advised that his client was willing to attend the meeting requested on the basis that it be held at Talbot Olivier, Lawyers’ office at 10.30 am on Thursday 14 September 2006.  He went on to say inter alia:

. . . the meeting is to be conducted on an open not a without prejudice basis, given that our client considers that it has fully discharged all of its legal obligations and does not have any basis to negotiate with your client in relation to his employment.

31      In response to Mr Ross’ letter to the Commission dated 5 September 2006 Mr Hemery rejected Mr Ross’ contention that the Commission had acted unconscionably and further indicated that the Commission did not intend to reconsider the course of action proposed in its letter to Mr Ross dated 1 September 2006.

32      The proposed meeting did not thereafter take place because the actions and statements of the Commission demonstrated to Mr Ross that it “had absolutely no intention of reconsidering or modifying their actions or of contemplating any efforts to alleviate or minimise the effects of the decision” (see transcript page 74).

33      Subsequently Mr Ross continued to correspond with the Commission and others with respect to various issues including his employment status, classification and rate of pay.

34      On 19 October 2006 The Civil Service Association of Western Australia Incorporated made an application to the Public Service Arbitrator with respect to Mr Ross.  A compulsory conference, followed by further discussion in that matter, failed to resolve the dispute.

35      Mr Ross has made application in his own right to the Western Australian Industrial Relations Commission with respect to denied contractual entitlements.  He has also made complaints to the Department of Consumer and Employment Protection, the Department of Premier and Cabinet and the Parliamentary Inspector of the Corruption and Crime Commission.

The Claim

36      On 20 February 2007 Mr Ross made a claim in this Court alleging that the Respondent had failed to comply with section 41(2) of the MCE Act with respect to its decision of 1 September 2006.  He contended in his application that the Commission did not hold or offer to hold any discussions concerning his “loss of job tenure”.

37      On 16 May 2006, being the first day of hearing, the Court (without objection) allowed the Claimant to amend his claim to include as an additional claim, or in the alternative, the Respondent’s decision made on 16 January 2006.

38      Section 41 of the MCE Act states:

41. Employee to be informed

(1) Where an employer has decided to — 

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

(b) make an employee redundant,

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

(2)  The matters to be discussed are — 

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

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

as the case requires.

39      The terms used in section 41 are defined and explained in section 40 of the MCE Act as follows:

40. Terms used in Part 5

(1) In this Part — 

“employee” does not include a casual employee or an apprentice or trainee;

“redundant” means being no longer required by an employer to continue doing a job because the employer has decided that the job will not be done by any person.

(2)  For the purposes of this Part, an action of an employer has a significant effect on an employee if — 

(a) there is to be a major change in the — 

(i) composition, operation or size of; or

(ii) skills required in,

the employer’s work‑force that will affect the employee;

(b) there is to be elimination or reduction of — 

(i) a job opportunity;

(ii) a promotion opportunity; or

(iii) job tenure,

for the employee;

(c) the hours of the employee’s work are to significantly increase or decrease;

(d) the employee is to be required to be retrained;

(e) the employee is to be required to transfer to another job or work location; or

(f) the employee’s job is to be restructured.

40      Section 5(1) of the MCE Act provides that minimum conditions of employment extend to and bind all employees and employers and are taken to be implied in any award or a contract of employment.  Section 7 provides that a minimum condition of employment, where it is implied in a contract of employment, may be enforced under section 83 of the Industrial Relations Act 1979 (IR Act) as if it were a provision of an award, industrial agreement or order.  It follows that this claim is brought pursuant to section 83 of the IR Act.

41      Subsections (4) and (5) and (6) of section 83 of the IR Act empowers this Court as follows:

(4) On the hearing of an application under subsection (1) the industrial magistrate’s court may, by order —

(a) if the contravention or failure to comply is proved —

(i) issue a caution; or

(ii) impose such penalty as the industrial magistrate’s court thinks just but not exceeding $2 000 in the case of an employer, organisation or association and $500 in any other case;

or

(b) dismiss the application.

(5) If a contravention or failure to comply with a provision of an instrument to which this section applies is proved against a person as mentioned in subsection (4) the industrial magistrate’s court may, in addition to imposing a penalty under that subsection, make an order against the person for the purpose of preventing any further contravention or failure to comply with the provision.

(6) An order under subsection (5) —

(a) may be made subject to any terms and conditions the court thinks appropriate; and

(b) may be revoked at any time.

Response

42      The Respondent says that its obligation was one to look forward to minimise the effect of the decision.  It says that there is ample evidence with respect to both the 16 January 2006 and 1 September 2006 decisions that post decision minimisation discussions were undertaken as required.  Indeed the meetings, discussions and correspondence following the 16 January 2006 reclassification decision resulted in a number of options being developed and considered.

43      In relation to the 1 September 2006 decision the Claimant’s lawyers advised that the Claimant refused to meet.  Discussions in writing then followed in October 2006 concerning employment classification and rate of pay.  Thereafter a compulsory conference and further discussions ensued.  The Respondent says that section 41 of the MCE Act requires discussion, not agreement.  Further, or alternatively, Mr Ross’ request of 5 September 2006 for a reconsideration of the 1 September 2006 decision and the Commission’s refusal to reconsider constitutes discussion of the measures that may be taken to avoid significant effect.

Determination

44      The decision made on 16 January 2006 has given rise to a multi-faceted dispute between the parties.  My function is to determine one facet of the dispute being whether the Respondent has failed to comply with section 41 of the MCE Act as alleged.

45      In its terms section 41 does not require discussions with the employee prior to the relevant decision being made.  It has effect where an employer “has decided” to take action that is likely to have a significant effect on an employee or make an employee redundant.  In such circumstances the employee is entitled to be informed by the employer, as soon as practicable after the decision has been made, of the action or redundancy, as the case may be and the employer is to discuss with the employee the likely effects of the action or the redundancy in respect of the employee and measures that may be taken by the employee or employer to avoid or minimise a significant effect as the case requires.

46      The requirement of section 41 of the MCE Act has been considered by the Western Australian Industrial Appeal Court in Garbett v Midland Brick Company Pty Ltd (2003) 83 WAIG 893 and also by the Full Bench of the Western Australian Industrial Relations Commission in Roxstead Holdings Pty Ltd v Oliver (2004) 84 WAIG 1064.  In each instance the provision was considered in the context of an unfair dismissal claim.  It was found in those matters that the dismissal of the employee was harsh, oppressive or unfair inter alia by virtue of the failure of the employer to comply with the obligations of section 41 of the MCE Act.  I know of no superior Court decision dealing specifically with the enforcement of section 41 through section 7 of the MCE Act.  In Garbett His Honour Heenan J made the following observation at paragraph 91:

. . . in my respectful opinion, the statutory modes of enforcement of the minimum conditions implied in the MCEA, which are enumerated by s 7 of the Act, constitute additional alternatives to the ordinary remedy of an action for damages for breach of contract in any court of competent jurisdiction. Civil action to enforce the contract may sometimes be the only remedy possible in cases where the employment relationship has been terminated and there is no claim for harsh, oppressive or unfair dismissal and, hence, no longer any "industrial matter" in issue between the contracting parties.

47      In this matter the claim is made pursuant to section 7 of the MCE Act.  Accordingly, section 83 of the IR Act has application.  It follows that if the Respondent is found not to have complied with section 41 of the MCE Act then it will be exposed to a caution or penalty notwithstanding that the proceedings are conducted within the general jurisdiction of this Court, which adopts the civil standard of proof.  The Respondent points out that the decision in Garbett may not be of particular assistance in a matter such as this which is penal in nature.  It is suggested that this Court might find itself in difficulty applying Garbett.   Counsel brought to my attention the decision of Waugh v Kippen and Another (1986) 160 CLR 156 to assist me in resolving the “conundrum”.  In Waugh their Honours Gibbs CJ, Mason, Wilson, and Dawson JJ said at page 164:

 In the course of argument, the question arose whether the two principles of interpretation to which we have referred come into conflict in the present case and if so, how the conflict is to be resolved.  If such a conflict was to arise, the court must proceed with its primary task of extracting the intention of the legislature from the fair meaning of words by which it has expressed that intention, remembering that it is a remedial measure passed for the protection of the worker.  It should not be construed so strictly as to deprive the worker of the protection which Parliament intended that he should have.   . . .   In such a context the strict construction rule is indeed one of last resort.  Furthermore, the process of construction must yield for all purposes a definitive statement of the incidence of an obligation imposed on the employer.  The legislature cannot speak with a forked tongue.

48      Section 41 of the MCE Act has the one meaning for all purposes notwithstanding that the provision has a remedial effect with penal consequences for its non observance.  I do not consider that the provision was enacted so as to provide different meanings in different contexts.  The observations made by the Western Australian Industrial Appeal Court in Garbett are both apposite and instructive in this matter.  In Garbett His Honour Hasluck J (at paragraphs 35 – 44) made some general observations about the construction of section 41.  He said at paragraph 38,

 . . . it seems that an entitlement, or something in the nature of a right, is being conferred upon the employee.  This suggests, according to the conventional mode of jurisprudential reasoning, that the employer is subject to a corresponding duty.

49      At paragraphs 40 to 42 he went on to say,

The notion that the provision is concerned with rights and duties is borne out to some extent by s41(2) which speaks of “matters to be discussed”.  This suggests that certain matters must be the subject of a discussion, that is to say, the employee is entitled to have a discussion about certain prescribed matters.

. . . It is quite clear from this that the purpose of discussion is to look at ways and means of ameliorating the effects of the redundancy upon the employee.

Section 18 of the Interpretation Act 1984 requires that a construction that would promote the purpose underlying a written law is to be preferred to a construction that would not promote that purpose.  This lends support to the notion that a statutory provision which purports to confer upon the employee an entitlement or right to be informed and participate in a discussion about certain matters of importance to him does more than require that an opportunity be provided for such a discussion to take place.  It imposes upon the employer a duty to inform and to ensure that a discussion about the matters to be discussed occurs.  (My emphasis added.)

50      At paragraphs 43 and 44 His Honour made the following important observations,

. . . For a provision to say simply that there shall be a discussion without making it clear whether any party is obliged to initiate the discussion would be vacuous.  To give the words a meaning, one must look at the provision as a whole and in this case the tenor of the language used is that the employer is obliged to take certain steps with a view to ameliorating the effects of the redundancy, such steps being essentially the prompt provision of information about the decision and the initiation of a discussion which may be of some assistance to the employee in dealing with the consequences  of the decision.

. . . On any view of the matter, the statutory provision does not expressly oblige the employee to initiate the discussion, although it would be open to him to do so.  If it were the intention of the draftsman to go no further than to require that the employer provide an opportunity for discussion, without being obliged to ensure that a discussion occurs, one would expect to find a clear statement to that effect.  As it is, the provision clearly contemplates that there will be a discussion about the “matters to be discussed”.  In the context of a provision which purports to be conferring a benefit upon the employee, this must lead to a conclusion that the employer will initiate discussion about the matters to be discussed.  (My emphasis added.)

51      His Honour Heenan J with whom Parker J agreed expressed similar views to those of Hasluck J.  At paragraph 90 he said:

. . . Further, in my opinion, the terms of the condition implied by s 41 of the Act in cases of redundancy or action likely to have a significant effect on an employee, actually require the employer to carry out the discussion with the terminated or affected employee which the condition provides for even where, and perhaps particularly where, the employee is unaware of the existence of that obligation or takes no steps to insist upon its performance.

52      At paragraph 94 he went on to say:

. . . and the obligation to discuss with the employee the various matters mentioned in s 41(2), actually requires the employer to bring that entitlement to the attention of the employee and to discuss the matters so arising, notwithstanding that the employee may not be aware of the existence of his or her entitlement to be so informed or of the obligation of the employer to discuss the matters provided. In the absence of such an obligation, the statutory provision is likely to have haphazard and random effect depending upon the existence or otherwise of knowledge by the individual employee, at the relevant time, of the effect of s 41. As the section applies to contracts of employment of all kinds, and the Act is designed to provide minimum conditions of employment which will, inevitably, involve many employees at the lower end of the employment scale whose knowledge and experience is likely to be limited, I consider that any different approach would fail to ensure that such employees receive the benefit of the statutory provision which its policy demonstrates is a necessary ingredient of their employment.  (My emphasis added.)

53      As indicated in Garbett section 41 of the MCE Act creates a positive obligation on the part of the employer to bring to the employee’s attention the entitlement under section 41 and to discuss the matters provided by the section.  The obligation upon the employer is more than to provide an opportunity for discussion.  The employer is obliged to initiate discussion (per Hasluck J in Garbett, paragraph 44) with a view to ameliorating the effects of the redundancy or the action that is likely to have a significant effect on the employee.  The discussion must be focused on such.  The discussion must be for the purpose of assisting the employee to move forward into another job or position, to reduce or eliminate any loss that might flow to the employee from the decision and to give the employee support at a difficult time.  It is not sufficient that there be mention of such issues in an ancillary way during discussions on other matters such as the legitimacy of the decision itself.

54      In the present matter the Respondent, although conceding that two decisions were made (16 January 2006 and 1 September 2006), says that the decisions should be seen as a continuum.  The Respondent concedes that the decision of 16 January 2006 was the major decision but says that the decision of 1 September 2006 can be characterised as the decision to put Mr Ross out for redeployment in the public service.

Decision made on 16 January 2006

55      There can be no doubt that the primary decision made on 16 January 2006 was the pivotal decision.  By that decision the Respondent unilaterally changed the classification of Mr Ross’ position.  It is obvious that the Respondent intended for Mr Ross to remain working for the Respondent under the same title, earning the same income and performing substantially the same work but in a substantive Level 8 position rather than Level 9 (see exhibit 6).  I accept that although the Respondent initially did not see its actions as terminating Mr Ross’ employment the effect of what was done was exactly that, as subsequently correctly characterised in the Respondent’s letter to Mr Ross dated

56      1 September 2006.  In that letter the Acting Commissioner proffered the view that termination occurred on the grounds of redundancy.  What transpired however did not, in my view, amount to a redundancy contemplated by section 41 of the MCE Act.  In section 40(1) “redundant” is defined to mean:

. . . no longer required by an employer to continue doing a job because the employer has decided that the job will not be done by any person. (My emphasis added)

57      Although Mr Ross was of the view that the new position was one with substantially different duties and responsibilities that required less knowledge, accountability and judgement (see exhibit 11), the nature of the job nevertheless remained fundamentally the same.  I acknowledge that the level of responsibility and reporting structures between the level 8 and 9 positions differed, but it cannot be said that the nature of the job changed.  Indeed the job title remained the same and was descriptive of the position.  In the Respondent’s view the job had not been abolished but rather reclassified.  It had not decided that the job would not be done by any other person.  It intended that Mr Ross continue in the job at a lower classification.  Given that the Respondent intended to retain Mr Ross doing substantially the same job with the same title at the same rate of pay but at a lower classification, the decision made on 16 January 2006 did not amount to a redundancy for the purpose of section 41 of the MCE Act but rather was an action that was likely to have a significant effect upon him.  The significant effect was the reclassification of his position resulting in the repudiation of his contract of employment and the termination of his employment (see sections 40(2) and 41(1)(a), MCE Act).  If however the decision could properly be characterised (for the purposes of section 41 of the MCE Act) as a redundancy, the Respondent may be in difficulty in any event because the holding of discussions after dismissal is effected fails to conform to the requirements of section 41.  In Roxstead Holdings Pty Ltd His Honour Sharkey P said at paragraphs 53 and 54:

53 It is quite clear that making an employee redundant is not synonymous with dismissal.  Thus, any discussion must occur before any actual dismissal is effected.  That I think is also clear, must be the case as a sheer matter of practicality.  I say that because the alleviation of the effect of the decision to make a person’s position redundant can only properly occur in discussion for the purpose of the section before a dismissal occurs.  For example, such discussions might give rise to the offer of and acceptance of alternative employment.  In any event, s41 requires the discussion to occur after the redundancy is decided and as soon as practicable thereafter.

54 There is no compliance with s41, when the discussion occurs after the dismissal therefore.

58      It may be argued that in view of what took place that the dismissal was not actually “effected” on 16 January 2006.  If the most beneficial view is taken in concluding that termination was not effected on 16 January 2006 the obligation imposed by section 41 nevertheless remained irrespective of the characterisation of the Respondent’s decision.  Indeed the obligation created by section 41 was the same whether the decision was one of redundancy or one to take action that was likely to have a significant effect upon Mr Ross save, as outlined in Roxstead Holdings Pty Ltd, that the effect of dismissal following redundancy is that discussions held after dismissal will not be in compliance with section 41.

59      It is quite apparent from the documentary and other evidence that the Respondent did not, on or about 16 January 2006, contemplate section 41 of the MCE Act.  In its letter to Mr Ross dated 16 January 2006 it did not bring to his attention section 41 of the MCE Act or the matters to which it refers and it did not seek to initiate discussion of the matters required by that section.  It did no more than to inform him of the decision and provided him with an opportunity to discuss "matters pertaining to (his) terms and conditions of employment” (see exhibit 2).  The Respondent presented Mr Ross with a “fait accompli” being the reclassification of his position.  It assumed that Mr Ross would continue to work for the Respondent in the new classification but being paid at the Level 9 rate of pay.  In doing so it failed to realise that what transpired amounted to a redundancy or a decision having a significant effect within the meaning of section 40(2) of the MCE Act.  Indeed it failed to realise that the effect of what it did amounted to a termination of Mr Ross’ employment.  It failed to appreciate that section 41 of the MCE Act had application in that instance.

60      Mr Ross took umbrage at what occurred and questioned the Respondent’s ability to do what it did.  The subsequent discussions and correspondence that ensued related more particularly to his grievance about the decision itself.  Inevitably, in the discussions and correspondence passing between the parties, certain options were looked at with a view to resolving the dispute.  Counsel for the Respondent suggests that such discussions amounted to what was required by section 41 of the MCE Act.  He says that the fact that the Respondent did not advise Mr Ross of his entitlement pursuant to section 41 of the MCE Act is of no consequence if, as a result of later discussions held, that which is contemplated by the section actually occurs.  That, it is said cures any potential difficulty caused by the Respondent’s failure to alert Mr Ross to his entitlement.

61      With respect, the Respondent’s argument fails to appreciate what was said in Garbett.  The obligation contained in section 41 of the MCE Act obliges the employer to bring to the employee’s attention the requirements of the section and for the employer to act upon such obligation.  Furthermore a construction of the provision which promotes its underlying purpose (see section 18 Interpretation Act 1984) implicitly creates a temporal feature to the obligation.  Indeed that was the view taken in Roxstead Holdings Pty Ltd in which His Honour Sharkey said:

52. . . the employer is required again, as soon as is reasonably practicable after the decision has been made to discuss with the employee the likely effects of the redundancy in respect of the employee.

62      Although His Honour made his comments in the context of a redundancy situation there can be no doubt that they have equal application to the alternative scenario in section 41.   It is not sufficient that the discussions occur some way down the track.  The ability to ameliorate the effects of the decision will almost inevitably be lessened or defeated by the passage of time.  Discussions occurring as soon as practicable after a decision is made will facilitate the taking of immediate remedial action.  It is important from the affected employee’s perspective that things happen quickly so he or she is not left floundering.  The Respondent failed in this instance to initiate such discussion as soon as reasonably practicable.  Its omission in that regard could not be cured by discussions that eventually took place well after the decision was made.  Those discussions did not initiate with a view to complying with section 41 of the MCE Act but rather were ancillary to Mr Ross’ challenge of the decision.  They resulted indirectly from Mr Ross’ initiative.

Decision made on 1 September 2006

63      Initially I had reservations as to whether the letter from the Respondent to Mr Ross dated 1 September 2006 contained a decision for the purposes of section 41 of the MCE Act.  The Respondent concedes that it did because Mr Ross was advised that he would be redeployed to the public service at a Level 7.  I now accept that.  Further it is arguable that the re-characterisation of what transpired on 16 January 2006 was also a decision because for the first time Mr Ross was informed that his employment with the Respondent had been terminated.  It may also be argued that the dismissal of Mr Ross was “effected” on 1 September 2006. 

64      By letter dated 31 August 2006 (exhibit 52) Mr Ross was advised by Commissioner Hammond that he would soon receive detailed advice from the Commission pertaining to the CPER restructure and the resultant impact upon him.  He was informed that:

Upon your consideration of this advice, the Commission will provide you an opportunity to meet with the Commission’s representatives.  You may wish to have your legal advisers present.

In order to facilitate this meeting, should it be required, please contact Ms Vanessa Grant, Director of Business Services on ……….within five working days of receipt of this letter.

65      It is self evident that the Commission’s letter to Mr Ross dated 31 August 2006 which related to the decision subsequently made on 1 September 2006 did no more than to alert him to the forthcoming decision and to provide him with an opportunity for discussion.   However the obligation upon the Respondent was more than to provide an opportunity for discussion.  There was a positive obligation on the part of the Respondent to bring to Mr Ross’ attention the entitlement under section 41 and to discuss with him the matters provided by the section.  The Commission was obliged to initiate discussion with a view to ameliorating the effects of the redundancy or the action that was likely to have a significant effect upon him.  There was a requirement for the discussion to be focused on such.  The discussion ought to have been for the purpose of assisting Mr Ross to move forward into another job or position and to reduce or eliminate any adverse consequence that might flow to him as a result of the decision.  It was not sufficient that there be a meeting “should it be required”.

66      On 8 September 2006 Mr Ross emailed Vanessa Grant and said inter alia:

(1) I refer to the Commission’s letter of 31 August 2006 and advise that I am prepared to meet with the Commission’s representatives.  I will be accompanied by Jan Stevens of Marks and Sands.  I wish to know in advance who will be representing the Commission at this meeting and the range of issues that might be discussed.  This information can be conveyed directly to Ms Stevens.

67      That email drew a response in writing from the Respondent.  On 11 September 2006 Talbot Olivier, Lawyers on behalf of the Respondent wrote to Mr Ross’ legal representative stating inter alia,

Our client is willing to attend the meeting requested by your client on the following basis:

(a)  the meeting be held at our offices at 10.30 am on Thursday this week;

(b)  the Commission will be represented by Ms Vanessa Grant and Mr Sunil Narula, and Mr Mark Hemery and Mr Gray Porter of our firm;

(c)  the issues to be discussed are those to be determined by your client, and than close of business Wednesday, given that he has requested the meeting; notified to this office no later

(d)  the meeting is to be conducted on an open not a without prejudice basis, given that our client considers that it fully discharged all of its legal obligations and does not have any basis to negotiate with your client in relation to his employment.

68      It will be obvious that Talbot Olivier’s letter failed to specifically mention section 41 of the MCE Act.  Indeed the onus was thrust upon Mr Ross to outline the issues to be discussed.  The Commission was, however, obliged to initiate discussion with a view to ameliorating the effects of the redundancy or the action that was likely to have a significant effect upon Mr Ross.  There was a requirement for the discussion to be focused on such.  That did not occur.  It seems that neither party contemplated section 41.  Mr Ross wanted to have a meeting to right what he perceived to be a wrong done to him.  From the Respondent’s point of view it had discharged all its legal obligations in relation to his employment therefore removing any basis for negotiation.  Given the circumstances it is not surprising that Mr Ross subsequently concluded that it was pointless taking part in the meeting.

69      What has subsequently transpired as a result of legal action initiated by Mr Ross with respect to matters unconnected with section 41 of the MCE Act cannot now be put up by the Respondent in satisfaction of the requirement of section 41.  As indicated earlier there is a temporal feature to the obligation that the Respondent had.  It is not sufficient that the discussions have occurred some way down the track.  The discussions should have occurred soon after the decision was made.  The Respondent failed to initiate such discussion as soon as practicable.  Its omission in that regard cannot be cured by subsequent discussions that took place for the purpose of legal proceedings initiated by Mr Ross in disputing the decision even though such discussions may have touched upon the requirements imposed by section 41.  In any event if the decision of 1 September 2006 amounts to Mr Ross’ dismissal being effected on that date discussions that have taken place following dismissal are not capable of compliance with section 41 (see paragraph 54 of Roxstead Holdings Pty Ltd). 

70      At all material times, the Respondent failed to comply with its obligations pursuant to section 41 of the MCE Act.

Result

71      The claim is made out.

G Cicchini

Industrial Magistrate