Maureen Curtis v Central Bayside Community Health Centre Karen Younie v Central Bayside Community Health Centre [1995] IRCA 309

INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 1815 of 1994 B E T W E E N MAUREEN CURTIS Applicant A N D CENTRAL BAYSIDE COMMUNITY HEALTH CENTRE Respondent VI 1878 of 1994 B E T W E E N KAREN YOUNIE Applicant A N D CENTRAL BAYSIDE COMMUNITY HEALTH CENTRE Respondent REASONS FOR JUDGMENT Two applications have been made to the Court pursuant to Division 3 Part VIA of the Industrial Relations Act 1988 (the Act) arising out of redundancies which occurred on 30 September 1994 when the employment of Maureen Curtis (Curtis) and Karen Anne Younie (Younie) was terminated by the Respondent. After four days of hearing evidence, the Applicants conceded that the Respondent had established a valid reason for the termination of their respective positions as the Administrator of the Centre's two programs referred as the Southway Program and the Further Education Program and as Director of the Southway Program. The valid reason was premised on both funding changes and the overall reduction in funding to the government funded centre which, amongst other things, provides services for the intellectually disabled. Notwithstanding the concessions made, the Applicants proceeded with their cases on the footing that the terminations were in breach of s170 DE(2) of the Act; that is to say, there was a lack of procedural fairness giving rise to harsh, unjust and unreasonable terminations. In her submissions to the Court, Ms Young, the Applicant's counsel, summarised the areas in which the Applicants alleged unfairness in the following manner: 1. the failure of the Respondent to adopt a fair and objective selection criteria to determine which of the employees affected by the funding cuts should remain. The Respondent terminated 3 employees and created a new position by amalgamating their positions and allowed them to apply for this job after advertising the position both internally and externally. It was contended this was done without first formulating selection criteria for deciding which employees should stay or be terminated. The former Program Director of the Respondent's Further Education Program, Peter Spyker (Spyker), was eventually appointed to the newly created position; 2. the failure of the Respondent to explore or to properly explore other alternatives to minimise the need to make the jobs of these women redundant; 3. the failure of the Respondent to minimise the adverse impact of the redundancies on the Applicants who were not terminated for any want of performance on their part; and 4. the failure of the Respondent to properly consult with each of the Applicants prior to the terminations. This last point was limited to consultation about the measures for averting or mitigating the adverse effects of the redundancies. At the outset, it is appropriate to make some observations about the witnesses called. The two Applicants gave evidence and called Vernise Francise (Francise), a social support co-ordinator who, until 30 September 1994, was a senior supervisor and instructor in the Further Education Program as well as the union representative in the work place. Spyker was the director of the program in which Francise worked. The Respondent, for reasons best understood by it and its legal advisers, was represented in Court by its Chief Executive Officer, Angelo Carlini (Carlini ), who was not called to give evidence until the last day of the hearing and only then as the Respondent's penultimate witness. The decision to call Carlini at this late stage when he was its principal witness affects the weight given to his evidence. The Respondent also called evidence from members of the panel other than Carlini which panel chose the appointment to the new position. These panel members were Helen Beverley Stuchberry (Stuchberry), a member of the Respondent's Committee of Management, Diana Hamilton Barnott (Barnott), a parent representative, Brian Raymond Dunlop (Dunlop), the Chief Executive Officer at the Oakleigh Centre for Intellectually Disabled Citizens, and George Francis Robinson (Robinson), Manager of the Department of Health and Community Services' Disability Program. The other witnesses called by the Respondent were Betty Dorrelle Craggs (Craggs), an instructor in the Southway Program, Amanda Jane Murphy (Murphy), the Respondent's Deputy Chief Executive Officer and William George Nixon (Nixon), the President of the Respondent's Committee of Management. Not surprisingly, many of the witnesses called were nervous, however, in assessing the matters in dispute, I have attempted to focus on the inconsistencies and contradictions in, as well as the plausibility of, the evidence given. After careful consideration of the evidence, I have concluded that the evidence of Spyker should not be relied on because of the very obvious inconsistencies in his evidence, which inconsistencies are highlighted in these reasons for judgment. Carlini, even with the benefit of 4 days of hearing all the evidence and the cross-examination of the Respondent's witnesses, had great difficulty in responding to the questions put to him and, at times, his responses lacked plausibility. For these reasons, I have generally accepted the evidence of the Applicants and, in particular, the evidence of Francise who impressed me as a forthright witness. The evidence of the panel members other than Carlini appeared to be guarded perhaps reflecting a concern that the Court may take the view that, in selecting an appointee to the new position, they may not have acted fairly or not have treated all candidates equally. It is not, however, the function of this Court to replace the decision of the panel with one of the Court. The role of the Court is confined to considering all aspects of substantive and procedural fairness in the redundancy process and, it follows, the process put in place by the Respondent for rehiring to fill the newly created position. This may involve consideration of, first, whether the Respondent formulated fair and objective criteria for determining who should be made redundant and, secondly, whether, when appointing a panel to select a person to fill the amalgamated position, it armed that panel with selection criteria, which criteria fulfilled its obligations to its existing employees. Each panel member was at pains to tell the Court that a selection had been made on the performance in interview of the four interviewees (2 internal and 2 external) and their responses to a series of questions asked of each candidate (Exhibit R6). In other words the criteria followed for selection or rehiring did not include any consideration by the panel of the existing employees' job performance with the Respondent. Ms Young, appearing for the Applicants, did not challenge the bona fides of the panel members other than Carlini. I have no hesitation in finding that, within the constraints of the selection criteria and instructions given to them by the Respondent, they acted bona fide. This does not mean, however, that the panel was in the context of the unlawful termination laws properly instructed by the Respondent on and, in the process it followed did discharge the Respondent's obligations to the employees it made redundant in order to effect the restructure. Background The Respondent provides services to the intellectually disabled and, in order to do this, it receives government funding. As a result of changes in the method of funding, as well as overall funding cuts mooted from 1993 but not implemented until approximately mid 1994, the Respondent determined that the most appropriate way of dealing with these cuts was to make redundant the three positions held by the Administrator and two Program Directors and create an amalgamated position. Until late 1993, Curtis was employed by the Department of Health and Community Services (the Department). It was she who initiated and helped establish the two intellectual disability programs known as the Southway Program, which provides community access services to intellectually disabled people and, the Further Education Program, providing training in life skills for intellectually disabled people. In late 1993, as a result of her recommendations, an Administrator's position was established with two Directors of the respective programs answerable to the Administrator. According to Curtis, she was asked to apply for and, after an interview, was appointed to the position of Administrator of the Central Bayside Intellectual Disability Service at the rate of pay of $21.00 per hour for a 38 hour week ($798.00 gross per week). Each of the programs referred to was staffed by a number of full-time, part-time and volunteer workers, some of whom were described as instructors. In order to take the position, Curtis negotiated 12 months leave from the Department to allow herself the opportunity to resign in due course if she was happy with the Respondent's position. As it turned out, the termination occurred before the expiration of the 12 months leave. At the date of hearing, Curtis had returned to work for the Department as an outreach worker at a rate of pay of $13.68 per hour. Her qualifications and experience were detailed for the Court as follows: From 1973 Employment with the Department - involving running a family group home for wards of state A cottage mother 1986 Intellectual Services Disability Officer in a Department house From 1987 Case management and outreach work in intellectual disability Cottage mother for St Vincent de Paul From 1988 Case mix outreach work for the Department implementing planning programmes Intellectual Disability Services Department Officer at Level 2 1991 to 1993 Acting Project Officer in Disability Planning with the Department 1992 A course in learning and instructional processes for clinical instructors at the Hawthorn Institute of Education 1993 A Graduate Diploma of Education at Melbourne University Various inhouse training courses From 1992, Younie was employed by the Department as a disability worker and commenced her employment with the Respondent in January 1993 as an instructor in the Further Education Program. She took maternity leave in the latter part of 1993 and was invited to apply for the position of Program Director of the Southway Program. She was interviewed twice for this job, once by Curtis and Spyker and a second time by Curtis and Carlini. Both Spyker and Carlini deny that they "interviewed" Younie, however, it was not argued that she was not properly appointed. Their denial, if anything, was directed towards establishing that Curtis interviewed and was responsible for the appointment of the two Directors. Younie commenced her new position on her return from maternity leave on 14 March 1994 on an annual salary of $31,933.00 at an hourly rate of $16.11. As at the date of hearing, Younie described herself as a student and listed her qualifications and experience as follows: A Degree in Forms of Communication from the Griffith University in Queensland Short courses with the Department A certificate in Management Fundamentals Incident reporting, induction programs, staff appraisals and client behavioural management with predominantly intellectually disabled clients Voluntary work with St. Nicholas Hospital in Carlton Community residential unit work with the intellectually disabled. General experience working with the intellectually disabled since 1980. Apart from her studies, she now works voluntarily doing meals on wheels whilst she attempts to obtain a full-time paid position. The work with the aged is part of an attempt by her to qualify to work generally with the aged. Spyker's position was that he was originally employed as a supervisor in the Further Education Program and, in about December 1993 when the existing Director of that Program left, he assumed the role of Assistant Director. There is and was some considerable dispute as to how by 1994 Spyker became the Director of the Further Education Program without, it is alleged, being interviewed for that position. Spyker told the Court that he had a Diploma of Teaching and a Graduate Diploma of Special Education relating to the integration of individuals with moderate to severe disabilities. Otherwise he had a number of years experience in education and welfare for people with disabilities. By the end of July 1994, the funding cuts and the resultant changes to the Respondent's programs were the subject of open discussion (Exhibit A3). By a memorandum dated 1 August 1994 (Exhibit A4), Carlini informed Curtis that the Respondent's Committee of Management were then considering options to "...ensure the least disruption to the viability of the Intellectual Disability Program following adequate consultations with key staff members." Curtis was requested to advise the Program Directors accordingly. It is alleged by Curtis that in early August 1994, while she was standing in the doorway to his office, Carlini told her that, because of the funding cuts, her position "would probably go" and he (Carlini) "...expected me to be co-operative and assist" the Respondent. Curtis' response was that she would do so "if it was in the best interests" of the Respondent. Carlini denied this conversation. At a meeting held on 17 August 1994 by Carlini and his Deputy Chief Executive Officer, Murphy, and attended by other staff from the programs including Curtis, Younie and Spyker, four options were raised by the Respondent as a means of accommodating the funding cuts as follows: a) Reduction of salaries and wages. b) Reduction of other expenses. c) Increase in client fees beyond the $35.00 per week introduced on 1/7/94. d) Request to the Department to cover rental and rate charges. The notes of the meeting held (Exhibit A9) show that, of the four options put to the meeting, the Respondent considered that options a) to c) inclusive were detrimental to 'the program's integrity" and option d) had been rejected by the Department. The position put by the Respondent at that meeting was that "the most likely way to achieve budget target for 1994/95 will be a reduction of salaries and wages to be achieved by a restructure of Administration positions with the Intellectual Disability Service Program". Those in attendance were told that, if the restructure occurred, the only positions affected would be those held by the Administrator and two Program Directors. At that time Younie formed the view that it was, in her words, "a genuine restructure and I hoped to have a position". It is contended by both Applicants that there was no detailed discussion and consultation with them about the options and ways of averting or mitigating the effect on them of implementing the restructure. On the whole, the evidence supports this contention. Such was their concern about the restructuring and the effect on their employment, on or about 1 August 1994, the Applicants visited the Department and met Robinson together with two other employees of the Department to discuss the Applicants' concerns. It is alleged by both Applicants that, at that meeting, Robinson informed them that the Department would support an option to downgrade the two Directors' positions and leave the Administrator's position in place. This action, on the part of the employees, was regarded by the Respondent as a breach of line management protocol and Curtis was subsequently disciplined for this. Interestingly enough, Younie was not disciplined. Both employees agreed that, in going directly to the Department, they had bypassed line management. At the meeting they were told by the representatives of the Department that the Department would not get involved and that they should inform Carlini of their meeting with the Department representatives. They did not do this until disciplinary action had already been initiated against Curtis. In both his evidence in chief and in cross-examination, Robinson did not recall whether, at the abovementioned meeting, the Department told the Applicants that it would endorse the proposal for downgrading the Directors' positions and keeping the Administrator. He thought this matter should be left up to the Respondent's management committee. Such a thought is at the very least consistent with there having been some discussion of alternatives to meet the funding cuts. In re-examination, Robinson was asked if the alleged suggestion from the Department "might have happened" and responded by saying that he "was fairly confident that it didn't occur ...". I was troubled by the witness' diffidence in responding directly and clearly to this question. Francise told the Court that, in August 1994, she had been informed by Curtis that the Department had supported the downgrading option at the abovementioned meeting. Younie had also confirmed that she supported the downgrading option even though it specifically affected her position. This led to Francise conveying this alternative to Carlini and Murphy at a meeting called by her with them on 6 September 1994. Both Carlini and Murphy denied that the alternative option was raised at the meeting with Francise and a woman from the union or at all. Murphy referred to her notes (Exhibit R3) which clearly refer to Francise discussing "concerns she had about the restructure of IDS". However, I am not satisfied on the evidence that the notes, which were not distributed to Francise, are an entire record of all discussions between the participants. There is certainly no evidence that the Applicants were consulted in any detail on the options or measures for averting or minimising the effect of the restructure. After a disciplinary session with Curtis on 16 August 1994, Nixon arranged to meet with Curtis during which meeting she raised what he referred to as "other ways of addressing the loss of income" to the Respondent. Nixon advised Curtis to put her concerns in writing. She believed these were to be transmitted to him and did so by writing three letters all dated 2 September 1994 to Nixon (Exhibit A18), which letters he handed on to Carlini. One of those letters addressed the restructure and proposed that the structure of Administrator/Coordinator and two Program Directors and support staff remain as the "ideal structure". It made no specific mention of the downgrading of the Directors' positions. However, I infer from the sending of the letter and the proposal in it that the employees were seeking to keep the existing structure as an alternative to redundancy to maintain the standard of the service. This step on Curtis' part is not inconsistent with or necessarily different from the downgrading proposal, as the method of funding the retention of the existing structure is not addressed by Curtis in the letter. Because of the threat to their jobs, it is more likely than not that the employees and the union representative did at some stage try to address other measures both with the Department and the Respondent including Nixon, who is the President of the Respondent's Committee of Management. This does not mean that the employees' proposal for maintaining the status quo with some downgrading to accommodate the funding cuts was viable. Carlini expressed the view in court that such a proposal was not viable because the salaries would have been downgraded to $10.00 per hour. This is the same as the amount paid to an instructor. Given Younie's willingness to participate in a downgrading; not to mention the availability of two full-time instructors positions from 30 September 1995, I am not satisfied that the Respondent consulted with the employees and did explore other measures to allow all 3 employees to retain employment with the Respondent. There is no evidence that Carlini ever attempted to discuss the contents of Curtis' letter to Nixon dated 2 September 1994 other than to use the letter as a basis for further disciplinary action against Curtis because, in his view, this was a further instance of her ignoring line management procedures. On 1 September 1994, Carlini and Murphy held a meeting with Curtis, Younie and Spyker. Younie was required to leave that meeting early and on her evidence did not participate in the discussions which occurred at that meeting. In any event, the discussions at that meeting were subsequently summarised in a memorandum from Carlini to Curtis, Spyker and Younie dated 5 September 1995 (Exhibit A15). It was at this meeting that Carlini informed the employees that the Committee of Management on 31 August 1994 had "moved that the re-structure of the intellectual disability program proceed". In other words, the preferred proposal raised by Carlini and Murphy at a meeting of 17 August 1994 had been endorsed and the three positions were to be made redundant with the creation of a new position by 1 October 1994 bearing a new title - "Intellectual Disability Services Co-ordinator". The employees were informed that, in accordance with the Respondent's policies and procedures, the new position would be advertised internally and "If there is no successful applicant to be found internally, the position will be advertised externally". At the abovementioned meeting, the employees were also informed that a "Position Description and Selection Criteria" was being developed (Curtis recalls a statement that it would be ready by the following Monday) and the makeup of the proposed interview panel of five persons was revealed to the employees. A second memorandum was received by Curtis on the same date confirming the Committee of Management's decision and, amongst other things, asking Curtis to "liaise closely to ensure the restructure is conducted with minimal disruption to clients and maximum consideration for program staff". Despite attempts to obtain a copy of the job description for the new position, it is the evidence of the Applicants that individually they were unable to obtain a copy of the documents (Exhibits A19 and A20) until a day or so before the closure date for the internal applications on Friday, 16 September 1994. Younie recalls that, after 3 to 4 requests for same, she collected only a copy of the job description at 4 pm on 15 September 1994. She did not at any stage receive a copy of the selection criteria (Exhibit R5) dated 19 October 1994 and used by the panel to select a successful candidate. I infer from the date on the selection criteria document that the formal selection criteria for the panel was prepared after the position was advertised externally. It is appropriate to note here that both Exhibits A19 and A20 specified as "mandatory" a tertiary qualification such as "a recognised tertiary degree in intellectual disability or special education." The position offered then contemplated a salary range of between $30,000 and $33,000 per annum, which was then equivalent to the salary paid to the existing Program Directors. It was contended by Curtis that, whilst the job description contained other duties to those already performed by her, it was essentially a job which included the duties she had previously performed as an Administrator. I am satisfied that, broadly speaking, the new position did take in much of the duties previously performed by Curtis as well as Program Director duties. The Respondent itself described the position as an amalgamation of all three positions. Both the Applicants and Spyker applied for the position advertised internally. Because of the late delivery of the advertisement and the job description, the Applicants' applications were not delivered until Friday, 16 September 1994, when it is contended that a fellow worker delivered those applications to Carlini's office pigeon-hole. Carlini's evidence is that he was absent on that day and even though he attempted to I conclude from this absence that he was not in a position to dispute the Applicant's allegation that the applications were delivered at the time they allege. Both applications were short letters drawn by the Applicants in the belief that, because the Respondent had their work records and curricula vitae, it was not necessary to provide more than a letter of interest (Exhibits A21 and A34). Because she was concerned by the failure of the Respondent to discuss with her, her position in any restructuring, Younie instructed solicitors, Messrs Slater & Gordon, to write to the Respondent on a number of matters on 15 September 1994 (Exhibit A35). These included - (i) the payment of back pay to refund her for the underpayment of wages; (ii) the exact nature of the restructure and Younie's position in it; and (iii) an expression of Younie's concern about the fairness of the policies and procedures of the Respondent where it had breached agreed procedures by appointing a staff member without an interview. This was a reference to Spyker's earlier appointment. By letters dated 19 September 1994 (Exhibits A22 and A36), Carlini acknowledged receipt of each application stating that the Applicants' applications were "hand delivered on 19 September 1994". That letter made no mention of any need to provide any additional material. Because of the comments on the delivery date of the applications, Curtis sent a letter (Exhibit A23) and an accompanying statutory declaration confirming the date of delivery of both applications on 16 September 1994. Written confirmation of termination of employment and notices of termination for 30 September 1994 were sent to the employees on 29 September 1994 (Exhibits A24 and A37). The debate over the date of delivery of the applications seems to have had little direct bearing on the ultimate decision to advertise externally and to employ Spyker. It does, nevertheless, give some insight into the deterioration of the relationship between the Applicants and Carlini The Applicants heard no more from the Respondent after they left their employment on 30 September 1994 until they noticed a newspaper advertisement in early October advertising the position externally (Exhibit A25). Two differences emerged from that advertisement. The first is that the tertiary qualification was no longer "mandatory" but "desirable" and the salary range was specified at $30,940 to $32,792. The external applicants were told that the closing date for their applications was 7 October 1994. It is worth recalling at this juncture that, at the meeting held with the employees on 1 September 1994 (see memorandum 5 September 1994 Exhibit A15), Carlini specifically referred to the Respondent's policy and procedure and told the employees that the position would, first, be advertised internally and, if there was no successful internal applicant, the position would be then advertised externally. By October 1994, neither Applicant had been informed that their internal applications were defective in any way, that these applications were not successful as internal applications or that the Respondent had digressed from its procedures and changed the selection process by deciding to advertise externally without interviewing and fully considering the merits of the internal applications. Mr Borenstein, the Respondent's counsel, quite correctly noted that the Applicants could not have succeeded on their internal applications because the applicable selection criteria required the successful candidate to have a tertiary qualification in intellectual disability or special education which neither woman had. The argument, nevertheless, begs the question of what if any obligation the Respondent had to employees it was about to make redundant, to formulate selection criteria which did not immediately preclude 2 of them from consideration for a position amalgamating their previous positions. In any event, by reducing the qualification threshold when it advertised externally, the Respondent must be taken to have been acknowledging that the mandatory qualification was an inappropriate selection criteria. Rather than retrace its process, the Respondent ignored its own policy of first attempting to make a selection amongst the internal candidates and in failing to do this, really failed to make a decision as to which of its existing employees would be made redundant by reference to pre-determined selection criteria giving due weight to both the interests of the employees and the Respondent. By letters dated 5 October 1994 (Exhibits A26 and A39), the Applicants were informed by Carlini that their applications "did not adequately address the position description". Carlini informed them that he "would be willing to consider" their "re-submitted formal" applications with "a current curriculum vitae which addresses the description details" and he extended the time for doing this to 10 October 1994. Carlini agrees that he never conveyed to Younie the change in the qualification criterion. In her evidence, Barnott, who was both a panel member and parent representative, identified Exhibit A44 which is a document purporting to set out the qualifications of staff at the Further Education Centre and Southway. This document appears to have been distributed at a parents' meeting attended by Carlini and others on 20 September 1994. At the head of the list of names of staff in the document are the names of Curtis and Younie specifying their qualifications as "none". The existence of this document is disturbing particularly in the case of Younie who, without the benefit of an interview with the panel, was not given the opportunity to show that she had experience and qualifications to equip her for the amalgamated position with the Respondent. At least by the time of her interview on 24 October 1994, Curtis had the opportunity to tell the panel and had by then submitted curriculum vitae which set out her qualifications and experience. Notwithstanding this opportunity, there was still no step taken by the panel to consider her job performance thus far with the Respondent. Generally speaking, because of her perception that the process was not correct, Curtis also consulted solicitors, Messrs Maurice Blackburn & Co. who, on her instructions, wrote to the Respondent on 6 October 1994 (Exhibit A27) giving notice of an application dated 6 October 1994 to this Court and further advising the Respondent that Curtis was seeking reinstatement to either her former position or, if that position no longer existed, the re-structured position. The Respondent's written response was sent by solicitors acting for the Respondent, noting that Curtis' job application would be dealt with on its merits and also referring to Curtis' one year's leave of absence from the Department and her right to return to the Department for employment. This lastmentioned observation is a curious response to a claim for reinstatement and perhaps suggests some misguided belief on the part of the Respondent that, because Curtis had another job to go to, this was a relevant consideration in deciding whether she should be reinstated or appointed to the new position. In my view its relevance, if any, lies in determining the extent to which the employer needed to go in order to mitigate the effects of the termination on Curtis by, for instance, assisting her in the search for alternative employment. On 7 October and 10 October 1994 Younie and Curtis re-submitted their applications together with current curricula vitae. These were acknowledged by Carlini by letters dated 10 October 1994 (Exhibits A28 and A41). In late October Curtis was granted an interview before the panel of five, which panel included Carlini. She concedes that she was very nervous and did not believe that she performed well. By a letter dated 13 October 1994 (Exhibit A29) the Respondent informed Curtis that she had not received any termination pay as at the date of termination she had annual leave arrears, giving a deficit of $91.91. In May and June of 1994 Curtis had been obliged to travel overseas to visit her dying mother. It would appear that it was this absence which gave rise to the deficit and left Curtis in the position where she received no severance pay at all. This meant that she received no financial compensation to compensate her for the involuntary nature of the redundancy and, further, no compensation in lieu of notice. Notwithstanding that this action was, as it seems, the consequence of the balancing of the Respondent's books because of the additional leave taken by Curtis, the effect of the Respondent's action was to compound the detriment suffered by Curtis as a result of the involuntary redundancy; rather than minimise or mitigate the effects of the termination. In a brief letter dated 27 October 1994 (Exhibit A30) Carlini advised Curtis that her application for the new position had been unsuccessful. It is Curtis' evidence that she was very stressed by what had occurred between August and September and this had affected her sleep and her ability to cope to such an extent that she had been given anti-depressants by her doctor and told to take some "time out". She did not apply to return to work at the Department until mid-October and commenced her employment as an outreach worker with the Department in mid-November 1994 at the rate of $13.68 per hour, for a 38 hour week. In her submissions to the Court Ms Young indicated to the Court that Curtis now sought compensation, rather that reinstatement as a remedy. Younie was not offered an interview for the new position, either when it was advertised internally or externally. Her last communication with the Respondent was the letter dated 10 October 1994 (Exhibit A41) acknowledging receipt of her application and curriculum vitae and telling her that she would be "advised further regarding the position when applications have been examined". It is not contested that such advice was not forthcoming, or that the Respondent failed to communicate directly with Younie as to the success or otherwise of her application. On termination Younie received termination pay, which included a lump sum figure, explained by Murphy at hearing as being 4 weeks severance pay, paid in accordance with the applicable award. Younie is now a part-time student, having applied unsuccessfully for numerous job positions since the termination of her employment. She seeks reinstatement. Neither Applicant was offered any counselling or paid time off work to seek alternative employment. More significantly, neither Applicant was offered the opportunity to apply for or be re-deployed to two job vacancies as instructors vacant from 30 September 1994; but not formally advertised until some time later (Exhibit A31). Furthermore, neither women was offered the opportunity to take up a locum position with the Respondent from 3 October 1994 to the date upon which the appointment to the new position commenced in approximately November or December 1994. This locum position was given directly by Carlini to Spyker. OTHER ISSUES RELEVANT TO THE REDUNDANCIES During the hearing of both proceedings a number of issues emerged between the Applicants and the Respondent, which issues the Applicants contend are relevant in deciding whether the Respondent acted fairly and objectively in the redundancy process, as well as in the process it followed in appointing a person to fill the amalgamated position. A Preferential Treatment of Spyker and matters in dispute with Spyker (See Exhibits A6, 7, 11, 12 &14) At some stage while Curtis was preparing staff accreditation material for the Department she discovered that Spyker had not been interviewed for the position then held by him as Program Director. The union, the union representative and both Applicants questioned this breach of the Respondent's appointments procedures and policies. There was an exchange of memoranda between Curtis and Carlini, in which Carlini alleged that she had interviewed Spyker for the position and Curtis countered by pointing out that she had not done this, but had been instructed in December 1993 by Carlini that Spyker had been appointed to that position and that she should inform Spyker of his salary increase. Ultimately, Carlini described the dispute as "... a difference of opinion regarding the procedures undertaken ..." (Exhibit A14). What is of interest in this argument is that there was, in the lead up to the redundancies an issue between the Chief Executive Officer of the Respondent and the Applicants and the union representatives about the Respondent's integrity in maintaining proper procedures when appointing staff. Exhibit R9 shows that even the Department sought clarification of the recruitment and selection process as at 12 August 1994 and had suggested to Carlini that he "shouldn't rely upon the issue that the Administrator is on leave without pay". The appointment procedure obviously became more important because of the prospect of redundancies and the offering of new or alternative positions to staff made redundant. Francise gave evidence that in approximately January or February 1994 she had a discussion with Spyker about several positions. He told her the position of Program Director of the Further Education Program was not going to be advertised as it was already his, and if she "didn't like it" she "could go to see Angelo Carlini". As Union Representative, Francise raised the issue with the union at numerous union meetings. This resulted in a general letter, dated 4 August 1994, being distributed by Francise (Exhibit A6) bringing attention to the problem of making a senior appointment without interview and further raising the concern that, with an impending restructure, proper procedure should be adhered to. Spyker denied the conversation with Francise, was unable to recall seeing the general letter dated 4 August 1994 (Exhibit A6), and further denied any knowledge of the feelings of the union members on this subject. Interestingly enough, he conceded that he had been a member of the Union but was no longer a member because in his words he was "ostracised from the union". In view of the strong feelings aroused by this issue and the memoranda tendered in evidence, I am satisfied that Spyker did know and understood that there was a dispute concerning the appointment to his then held position and that, further, there was a dispute between Carlini and Curtis as to how that appointment came about. After claiming to have been appointed as Program Director in December 1993 or January 1994, Spyker conceded that his application for this position was in fact dated 4 February 1994. This discrepancy he attempted to explain by saying that he "got the dates wrong" on the application. I do not accept this as a plausible explanation of what occurred. Carlini's evidence was that the position was advertised, however the Respondent produced no documentary evidence to support this claim. He also claimed not to have seen Spyker's application dated 4 February 1994 until the day before he gave evidence. This is a curious claim in view of the dispute during 1994 over Spyker's appointment and the allegation that Curtis had appointed Spyker. It is surprising that Carlini did not review Spyker's file to ascertain the answer to the initial query concerning who appointed Spyker and on that occasion note the date of the application made by him. On balance I am satisfied that there was some irregularity in the original appointment of Spyker as a Program Director. Indeed, Carlini's behaviour in appointing Spyker directly to the locum position without consideration of any other employees' interest in this position suggests a misapprehension on his part of fair process between employees with equal and competing interests in this additional period of employment. During Curtis' absence overseas from late May to the end of June, some incidents occurred which led to her conducting a disciplinary session with Spyker (Exhibit A 5). There were at least 7 items dealt with in a meeting in early August 1994 between Curtis and Spyker. Curtis alleges that she had not wanted Carlini to attend this meeting because it was a disciplinary meeting and if there were any unresolved issues it would fall to him as Chief Executive Officer to solve them. In any event Carlini attended and it is not contested that Spyker acknowledged and sought to explain each item of complaint. However, it was Carlini's behaviour in informing Spyker that he need not treat the meeting as a disciplinary exercise, that caused Curtis considerable concern, because she was of the view that he was being disciplined over important client issues and matters of performance. All 3 employees were terminated on 30 September 1994. On the same date the 2 instructors, one of whom was Francise, also left their positions having given notice prior to 30 September 1994. Their resignation was not as a direct result of the funding cuts. Francise contends that at a meeting in September 1994 attended by Carlini, Carlini responded to a query from a staff member as to whether Spyker would be leaving as a result of the restructuring, by saying that Spyker would not be leaving. Some days before Francise left her employment, she was asked by Carlini for her keys. When she, in turn, asked Carlini if he was asking for Spyker's keys Francise alleges that Carlini said "he's not leaving". The comments both at the meeting and prior to Francise leaving were denied by Carlini. It was apparent from the evidence of Francise and the Applicants that they all felt that by his conduct Carlini had demonstrated an intention to retain Spyker for the new position. One of the very difficult issues to be decided is this question of preferential treatment of one employee over other employees made redundant at the same time in circumstances where there is no existing issue as to their performance or capacity to do their respective jobs. I was troubled to learn in the course of the hearing that for all intents and purposes, Spyker did not leave his employment with the Respondent. On the Monday morning following the termination, Carlini rang Spyker and invited him to return that day to a locum position running the existing programs pending the permanent appointment of a Coordinator. Carlini clearly knew prior to 30 September 1994 that there would be a period between the date of the redundancies and the new appointment. I infer from his behaviour in this matter and from the evidence of the conflicts and tensions in the months preceding the redundancies that he treated both women less favourably when it came to mitigating or minimising the effects on them of the redundancy. Neither woman was offered the opportunity to compete for or to refuse the locum position when, before termination, all 3 employees had expressed an interest in being appointed to the new position. Both women were unemployed during the locum period. The locum position was filled by Spyker and gave him employment until he was appointed to the new position in about November or December 1994. It is further alleged by Curtis that some two weeks after her return from her overseas trip Spyker informed her that Carlini had expressed the view that her position as Administrator was not needed and had told Spyker that she was still employed by the Department. Carlini agreed that Curtis remonstrated with him over this discussion of her position with a junior member of staff however he denied the thrust of the discussion as alleged and claimed that "we were talking about general issues not specifically Maureen Curtis". Spyker simply failed to recall any discussion at all. The conflict in the evidence of the 2 men makes it more probable than not that the discussion occurred as is alleged by Curtis. The inference I draw from this evidence is that the relationship between Carlini and Curtis was a poor one even before the redundancy became an issue. Carlini was at the very least expecting Curtis to leave and this and the deteriorating relationship influenced the way he dealt with her interests in the period leading up to the redundancy. A further matter of dispute between Curtis and Spyker arose out of the completion of time sheets for Curtis during her absence overseas from late May to June 1994. This was clearly an issue of some moment. At the end of the day, Curtis' termination pay was affected by the adjustments made because of the leave taken. It was not disputed by Carlini in his evidence that, following the Christmas vacation, Curtis returned to work early and that she was told by him that she could take her paid leave when she wanted to. When her mother became ill, she left for overseas at the end of May and it is contended by Curtis that, at a meeting attended by Younie, Murphy, Carlini and Spyker in mid May 1994, Carlini agreed to an arrangement in which Spyker would complete Curtis' time sheets as "though I was working". Exhibit A 45 is an undated typed document confirming the abovementioned arrangement and is signed by Younie and Spyker. Carlini did not "recall" making any of the statements attributed to him and denied having previously seen Exhibit A45. He claimed that any leave arrangements would have been made through Murphy and he did not directly approve of the arrangements as alleged. Spyker denied any discussions in front of Carlini concerning the alleged arrangement and claimed that Curtis had instructed her daughter to complete the time sheets. According to Spyker, there was "a lot of dishonesty going around about arrangements for her to go and she left earlier than her approved leave and she asked me and other staff not to tell the Health Centre". This lastmentioned allegation was never put to Curtis, rather, in cross-examination of Curtis, it was alleged that she had acted fraudulently in the arrangement for completion of her time sheets. When Spyker was cross-examined after denying any meeting or arrangement for him to complete Curtis' time sheets, he was shown Exhibit A45. He identified his signature on the document but denied any recollection of the signing of the document or the meeting referred to in the document. Despite the serious allegation that Curtis had arranged to submit fraudulent time sheets, Carlini took no disciplinary action against Curtis over this matter. It was only when her employment was terminated that there is some reference to an adjustment for the extra leave taken. I conclude from the evidence on this matter that there was an authorised arrangement for Spyker to complete the time sheets in accordance with the document signed by him, Whether or not Curtis took her leave earlier than arranged, is not relevant to whether there was an arrangment for him to complete her time sheets. In giving his evidence, Spyker clearly displayed some resentment towards Curtis and that resentment was evident as early as May 1994 because, as soon as Curtis left to visit her mother, he arranged for someone to inform Carlini that she had, in his words, "left early". Again, no disciplinary action was taken against Curtis, nor was it suggested by Carlini that she had taken any leave without permission. B. Disciplinary action against Curtis It was not until the restructuring issues had been aired for the first time that Curtis faced what can only be described as serious disciplinary action by her employer. In contrast, no disciplinary action was initiated against Younie even though she accompanied Curtis to the meeting with the Department without informing the Chief Executive Officer. By letter dated 12 August 1994 (Exhibit A8) from Carlini to Curtis, Curtis was advised of a number of matters of "grave concern" to the Respondent's Board of Management. She was notified of a meeting for 16 August 1996 with Carlini, Murphy and Nixon to discuss these matters. Curtis was invited and did attend the meeting with a union representative, Kerry Grabau. Interestingly enough, this disciplinary action occurred within a week or two of Curtis disciplining Spyker. At the meeting on 16 August 1994, the issues raised in the letter of 12 August 1994 were discussed and included allegations of - (a) low staff morale; (b) Curtis' approach to staff and her management style; (c) her failure to support some of the Respondent's policy procedures; (d) her meeting with and discussions with the Department without advising Carlini; and (e) her inability to forward information as requested from time to time. Curtis gave explanations in respect to all the abovementioned matters. She noted, however, and this was confirmed by Nixon, that her request for the identity of staff members who had complained was refused and, likewise, she was not told what information it was alleged had not been forthcoming from her. It was after this encounter that Nixon invited her to ring him and make a time to meet with him to discuss her concerns. Curtis' correspondence of 2 September 1994 directed to Nixon gave rise to a second disciplinary warning (Exhibit A18) because, by communicating directly with Nixon, the Applicant had not used "the correct channel of communication". Curtis contended that Nixon had told her to send her written concerns to him and, at the very least, that is what she understood was the outcome of their discussions. Nixon could not "remember precisely" the words he used but told the Court that the usual practice was to go through the Chief Executive Officer. The letters received by Nixon included a memorandum on what Curtis' view was of the ideal structure for the service, a letter reiterating that Curtis had not interviewed Spyker for his then held position as Program Director and a letter raising concerns over the comparative administrative costs of the Health Centre. Carlini's letter to Curtis dated 15 September 1994 (Exhibit A18) does not deal with the substance of her correspondence to Nixon, only her alleged breach of line management protocol. It concludes by informing Curtis that "should there be any further breach in this regard, you will receive a final warning and for any subsequent breach, dismissal will follow". Carlini did not dispute that Nixon had asked Curtis to put her ideas in writing or that, before sending her the letter of warning dated 15 September 1994, he had not asked her for an explanation why she wrote directly to Nixon. Moreover, it seems an odd step for the Chief Executive Officer to threaten dismissal for breach of line management procedure some 2 weeks or so before the employee's redundancy. This behaviour does underscore the tensions in the workplace and perhaps provides one explanation for Carlini not giving any consideration to offering Curtis alternative employment. On 20 September 1994, there was a meeting held with parents to discuss the service (Exhibit A43). That meeting was attended by a number of parents as well as Barnott, Nixon, Carlini, Spyker, Robinson and Peter Spyker senior, who is a member of the Respondent's Committee of Management. Carlini's recollection is that he did not convene this meeting; rather, he was asked to attend. Neither Applicant was present even though the meeting ranged through numerous issues including the restructure and a number of other matters of administration of the service and the two programs. What is of particular interest is that, in responding to the parents' concerns, the notes of the meeting show quite clearly that there were a number of criticisms, explicit and implicit, in the responses given by Carlini and Peter Spyker senior to the parents' queries. Barnott, Robinson and Carlini were all subsequently members of the panel appointed to select a person to fill the new position. The criticisms were criticisms of Curtis in her role as an Administrator of the services. Nixon was the only witness called by the Respondent who was ready to acknowledge that the explanations given by Carlini and one explanation offered by Peter Spyker senior, Spyker's father, amounted to criticism of Curtis as a manager. I am satisfied on the evidence that the comments made at that meeting were, in part, very critical of Curtis in the performance of her role at the Centre. At the same meeting, it was not disputed that at least one of the parents present suggested that Spyker be appointed to the new position because he was "highly qualified for the position". This is a particularly pertinent comment in view of the existence of Exhibit A44; namely, the document distributed at that meeting setting out staff qualifications, in which document Curtis and Younie are alleged to have no qualifications. It is not difficult to infer from the abovementioned matters that, at least by September 1994, the relationship between Carlini and Curtis was a strained one. Both Curtis and Younie were certainly not being promoted by Carlini as potential candidates for any employment position with the Respondent and, in Younie's case, she appears to have been very much ignored. Carlini denied being upset when he received the letter from Younie's solicitors dated 15 September 1995 (Exhibit A35). However, Curtis claims that, in discussions with her about that letter, he was angry and upset. It is more likely than not that the first correspondence from the solicitors complaining, amongst other things, that Younie had not been properly notified of the proposed changes did cause some concern and upset for Carlini. The Respondent gave no evidence of what its response was to the solicitors' correspondence, and there was certainly no evidence given of the Respondent subsquently meeting with Younie to address her concerns raised in the solicitor's letter. C. Selection for the Amalgamated Position It was Carlini and Murphy who drafted the job description and the subsequent selection criteria for the new position. As already noted above, the selection criteria used by the panel was not finalised until 19 October 1994, well after the date of termination of all the employees. The position contained many, but not all, of the features of the Administrator's job as well as features of the Program Directors' jobs. Notably the position paid to the successful applicant about the same amount as was then received by the Program Directors, and some $10,000 per annum less than the Administrator's position. The salary was and is still greater than that paid to Curtis as an outreach worker for the Department ($519.84 gross per week) and more than at least one of the instructor's jobs available after 30 September 1994 at the rate of $10.00 per hour ($380 gross per week). Carlini and the four witnesses who were on the selection panel (Robinson, Stuchberry, Barnett and Dunlop) all made the point that they treated the new position as just that and, in making their selection for interview and for the position, gave no consideration to the fact that any of the candidates were applying as a result of a redundancy and should be given priority or preference in the rehiring process. The Applicants believed that, because their applications were being made internally, they could rely on their existing curricula vitae and their recent job histories, known to the employer, and simply file an expression of interest as may be the practice in the public service. Robinson's evidence tended to support this view. Whether or not this was a correct or desirable practice, by 19 September 1994 Carlini had their letters of interest and presumably an application from the only other internal candidate, Spyker. It is now not disputed by the Applicants that the redundancy was a genuine one even though their duties were combined to create an amalgamated position offered internally from mid September 1994. Notwithstanding the existence of a valid reason for the redundancy the employer still has an obligation when effecting redundancies to avoid acting in a harsh unjust or unreasonable way vis-a-vis the employees made redundant. It is a question of fact as to whether the Respondent in developing its job description which initially excluded the two Applicants from consideration was acting reasonably in all the circumstances. It would be inappropriate to suggest that in all cases where an employer restructures and creates new positions absorbing the duties of the employees made redundant, the employer should not seek to fill the new position with a candidate who has higher qualifications than some or all of the employees made redundant. This would be unnecessarily burdensome to employers. In this case the issue is whether Carlini was acting with fairness and objectivity when he developed the original job criteria for internal applicants. The evidence suggests that he did not adopt an objective and impartial approach to this matter. It is, however, the failure to follow its own procedure for interview and selection before advertising externally which produced unfairness in the process for rehiring to the amalgamated position. Stuchberry was the convenor of the selection panel. None of the outside panel members who gave evidence were able to say who made the decision to advertise externally, however, Stuchberry did recall that there was difficulty in making a decision with the three internal candidates because two could not meet the qualification referred to in the job description. In her view because the position had changed it was wise to advertise externally to obtain a wider selection of candidates, although she did not make this decision. Carlini in his evidence alleged that Struchberry had asked the Respondent to advertise externally because Curtis and Younie did not have appropriate qualifications. The conclusion I draw from this evidence is that it was the Respondent's conduct which led to it advertising externally before giving the internal applicants an opportunity to compete favourably. Even though Stuchberry and the panel members were aware that the applicants had lost their positions as a result of a redundancy, their approach was to treat all candidates, both internal and external, equally. In other words, they were never instructed to adopt any other approach. None of the outside panel members was aware of, or if they were did not apply, the policy and procedure of the Respondent of first determining the suitability of the internal candidates before resorting to external advertising. Of course, until the selection criteria was adjusted, the panel would have had no choice between the internal candidates. The panel members understood the charter of the panel was to find the best person for the job and therefore saw no difficulty in the proposition that three employees had lost their jobs and by advertising externally someone new could be employed in the new but similar position to that held by the employees made redundant. Stuchberry was responsible for selection of the candidates for interview after the applications had been received from the internal and external applicants. She saw Younie's application which by then contained her curriculum vitae, but determined that she was not a suitable candidate and did not include her in the list of candidates for interview on 24 October 1994. Stuchberry believed it was the responsibility of the Respondent's administration to communicate the panel's decision to Younie. She and the other outside panel members were unable to offer any reason why Younie was not directly communicated with by the panel or the Respondent following the re-submission of her application. Even though, according to the panel members, the result was that Spyker was the clear winner, the failure of the Respondent to properly instruct the panel on the criteria to be applied both in offering interviews and in determining the selection of a candidate was prejudicial to both Applicants and, in particular, Younie who lost the opportunity to be interviewed when 2 external candidates received that opportunity ahead of her. Moreover Carlini did not at any stage inform or instruct the panel that it should first consider the merits of the three internal applicants' applications not subject to a qualification threshold, immediately precluding the two women who were otherwise candidates with relevant experience and credentials in intellectual disability services. This again prejudiced the Applicants and, in particular, Younie. Without exception the outside panel members who gave evidence denied that they had been influenced or persuaded by Carlini to appoint Spyker. I accept their evidence on this matter. The basis upon which they selected the appropriate candidate was the candidates' performance at interview and responses to a set of standard questions (Exhibit R6) put to all interviewees. Although they agreed that a person's prior job performance was relevant the panel members did not rely on this and did not seek any references on the internal candidates past job performance with the Respondent. In other words, the panel never sought or were required to consider any information from the Respondent on the performances of either Curtis or Spyker while working with the Repondent. I found this unusual in circumstances where Curtis had until 30 September 1994 held the most senior and responsible position and where at least 3 members of the panel were present at the parents meeting on 20 September 1994 when numerous criticisms were levelled at Curtis's performance of her Administrator's job. D. Steps taken to offer alternative employment Both Applicants assert that, had they been given the opportunity, they would have applied for the locum position and the instructors' positions. They were never made aware of the existence of the locum position whilst they knew that the two instructors' positions became vacant as at 30 September 1994. These positions were not advertised until one month later for one position and 26 November 1994 for the remaining position. The first position was taken by an internal applicant who was, until accepting the instructor's position, a part-time employee. The second position went to an external applicant. Carlini could give no plausible explanation for not giving the Applicants the opportunity to continue their employment with the Respondent in any of the positions available when it was clear that each woman possessed the experience to perform the duties required. In Younie's case, she had been an instructor prior to becoming a Program Director. Despite knowledge of the existence of the two instructors' positions, neither Applicant applied to be considered for these jobs or made enquiries as to when the vacancies might be filled. On the evidence, I accept their claims that, by the time they left on 30 September 1994, they viewed Carlini's attitude towards them as being a hostile one. Neither woman felt welcome in the workplace. The general thrust of the evidence suggests that there had been a great deal of disruption in the workplace prior to the redundancies. There was certainly some controversy surrounding Curtis and Younie was aligned with her in her attempts to maintain the existing job structure and ensure that proper workplace procedures applied in the appointment of candidates to the new position. Younie gave evidence that she sought a reference from Carlini and, whilst he could not recall being asked for one, it was agreed that thus far she has not been given any written reference. Findings The Applicants carry the burden of proving that the redundancies were harsh, unjust or unreasonable, in circumstances where it is conceded that there was a valid reason for the restructuring process, which led to the amalgamation of 3 positions into one position. I am satisfied on the evidence that the Respondent failed to afford the Applicants procedural fairness in the termination process and, viewed objectively, the redundancies were harsh, unjust and unreasonable. In considering whether the terminations were harsh, unjust or unreasonable, it must be kept in mind that the object of this Division of the Act is to give effect, or further effect, to the Termination of Employment Convention and Termination of Employment Recommendation (see s170 CA(1) and Schedules 10 and 11 of the Act). Where termination is brought about by, amongst other things, economic or structural reasons, the Recommendation contains a number of relevant paragraphs, as follows - "19 (1) - All parties concerned should seek to avert or minimise as far as possible termination of employment for reasons of an economic, technological, structural or similar nature, without prejudice to the efficient operation of the undertaking, establishment or service, and to mitigate the adverse effects of any termination of employment for these reasons on the wroker or workers concerned." "21 - The measures which should be considered with a view to averting or minimising termination of employment for reasons of an economic, technological, structural or similar nature might include, inter alia, restriction of hiring, spreading the workforce reduction over a certain period of time to permit natural reduction of the workforce, internal transfers, training and retraining, voluntary early retirement with appropriate income protection, restriction of overtime and reduction of normal hours of work." "23(1) - The selection by the employer of workers whose employment is to be terminated for reasons of an economic, technological, structural or similar nature should be made according to criteria, established wherever possible in advance, which give due weight both to the interests of the undertaking, establishment or service and to the interests of the workers." "24(1) - Workers whose employment has been terminated for reasons of an economic, technological, structural or similar nature, should be given a certain priority of rehiring if the employer again hires workers with comparable qualifications, subject to their having, within a given period from the time of their leaving, expressed a desire to be rehired." "25(1) - In the event of termination of employment for reasons of an economic, technological, structural or similar nature, the placement of the workers affected in suitable alternative employment as soon as possible, with training or retraining where appropriate, should be promoted by measures suitable to national circumstances, to be taken by the competent authority, where possible with the collaboration of the employer and the workers' representatives concerned." "25(2) - Where possible, the employer should assist the workers affected in the search for suitable alternative employment, for example through direct contacts with other employers." The abovementioned guidelines are just that, however, they do provide some yardstick by which the Court can measure, at the very least, the reasonableness of the employer's actions in a termination process involving redundancies. This does not mean that the fairness of the process should only be measured against the guidelines. What amounts to a harsh, unjust or unreasonable termination must always be a question of fact, to be determined on a case by case basis. In these proceedings the creation of the new position by amalgamation of 3 existing positions at a salary equivalent to that of the 2 junior positions, left all 3 employees with an interest in the new position and, at the very least a claim to be selected for redundancy by reference to fair and objective criteria and an expectation that they would be offered the opportunity to be considered for rehiring, as was originally contemplated by Carlini's representation that if there was no successful internal candidate the job would then be advertised externally. To what extent the Respondent was obliged to produce a job criteria which did not preclude the Applicants must be determined by reference to the fact that it was an amalgamation of the 3 jobs, and presented as an excellent opportunity for the Respondent acting bona fide to give the employees, who were not dismissed for poor performance, some priority in rehiring as well as conducting itself in such a way as could be interpreted as helping to minimise and mitigate the effects of the termination on those employees. It was argued by Mr Borenstein that there was no miscarriage of the process because ultimately an internal candidate got the job on his merits. The evidence of the panel members was very supportive of their chosen candidate for the job and it is not this Court's function to try and decide whether he was a more or less suitable candidate. By advertising externally the qualification threshold was lowered, whereas if the panel had proceeded to interview all of the internal candidates the qualifications requirement would have excluded both women and Spyker would have got the job anyway. Needless to say, this submission ignores the matters already referred to above. Mr Borenstein also relied on a decision of Von Doussa J in Barnes v Ranger Uranium Mines Pty Ltd (1993) 50 IR 38, which supports the broad proposition that, even if certain procedural failings in the redundancy process have taken place, there needs to be a factual basis for concluding that the damages claimed are causally linked to the failure to take certain steps, such as consult with the employees. In that case the employer's breach of the award was not the cause of the loss claimed; rather that loss was the result of their redundancy. In other words, the submission is that the damage or loss claimed has to be caused by the alleged breaches of the Act. Parkinson JR takes up a related line of reasoning in the decision in Mallen v Beasam Pty Ltd (Unreported No VI 544 of 1994 at page 10) where, in a case involving a redundancy, she was not, on the evidence, satisfied that the Applicant suffered financial loss as a result of the termination. In that case the facts supported the conclusion that even if procedural fairness had been afforded to the Applicant there was little likelihood that the employment would have continued for a significant period of time, because of the restructuring of the company. The facts of the cases under consideration in this judgment distinguish them from Mallen's case in a number of ways. In Mallen's case the Respondent employer clearly went to some lengths not only to minimise the effect of termination on the employee, but to compensate him with generous severence pay and outplacement services and counselling. For instance, the Respondent was active in assisting Mallen in seeking alternative employment so that, whilst finding that the redundancy was harsh in the sense that there had been a failure to consult, there was no loss causally linked to this failure and no evidence that his employment would have continued beyond the date of the redundancy. I do not see Mallen's case or Barne's case (the latter of which was decided before the enactment of the Act) as establishing the proposition that in determining appropriate compensation where a redundancy is found to have been harsh, unjust or unreasonable, the Applicant must establish some financial or remunerative loss causally connected to the breach of the Act before being entitled to compensation. Section 170EE (3) of the Act quite specifically requires the Court to have regard to the remuneration that the employee would have received, or would have been likely to receive, when determining the amount compensation payable. By its wording the section clearly contemplates that matters other than only loss of remuneration are compensable. For instance, it cannot be said that any procedural unfairness associated with the loss of the opportunity to be interviewed for the job is not compensable. However, in weighing up the matters affecting compensation payable, the employer's generosity in the redundancy package offered may lead to the conclusion that the payment of further compensation would be inappropriate. Whilst the caselaw predating the enactment of Division 3 Part VIA of the Act is often of assistance in interpreting the provisions of the Act, it would be wrong to blindly follow those cases without reference to the structure of the Act. Having found that the terminations were harsh, unjust and unreasonable pursuant to s170 DE(2), the Court may in "respect of a contravention of a provision of this Division ..." (s170 EE(1)) make orders reinstating the individual employees or, if that is impracticable, make an order for payment of appropriate compensation. The statutory remedy is a discretionary one arising in respect of a contravention of the Division. It does not require an employee to prove that there has been financial loss attributable to the contravention, although in exercising its discretion where only compensation is payable a Court would no doubt be influenced by evidence that there has been no remunerative loss when quantifying appropriate compensation. Curtis and Younie lost a number of things as a result of the terminations. Apart from their paid positions they lost the opportunity to be interviewed or properly interviewed and compete fairly for the new position in circumstances where the panel was not at all required by the application of selection criteria prepared by the Respondent to give them any priority in rehiring. In Younie's case she was further prejudiced by not even being given an interview. They both lost the opportunity to compete equally for the locum position of up to 2 months' duration which could have extended the period of their paid employment beyond the date of redundancy. They were, by the Respondent's behaviour, shut out from the prospect of applying for and obtaining either one of the instructors' positions. If money is the only criterion applied, then Curtis was arguably better off returning to her Departmental job at $13.68 per hour, rather than seeking an instructor's job. This cannot be said of Younie, who, prior to the restructure being put into effect, had expressed a willingness to accept a downgrading of her Program Director position, which would have reduced her salary. Moreover, Younie had moved from an Instructor's position to a Director's position in early 1994. The Instructor's position would have presented a viable alternative for her. The fact that one instructor's position went to an external candidate, without the opportunity for the existing employees to compete internally for this job really suggests that, particularly in Younie's case, she suffered clear financial loss. Remedies (i) Curtis Curtis resumed her employment with the Department in mid November 1994. She seeks to be compensated for the period of unemployment as well as her continuing weekly loss of $95, being the difference between her income as an outreach worker and that paid for the amalgamated position offered by the Respondent. The Respondent argues that Curtis failed to mitigate her loss insofar as she did not avail herself of the opportunity to return to the Department at an earlier date. The Respondent carries the burden of proof in showing that Curtis should have taken certain steps to mitigate her loss (see Marke v G. & K. O'Connor Pty Ltd Unreported VI 1097 of 1994 at page 12 et seq. Staindl JR). On the evidence I am not satisfied that Curtis could return to the Department without a period of notice. The medical evidence produced by her in support of her claim that she required time off after the termination because of stress is inconclusive. Nevertheless, this does not mean that it was unreasonable for her to take some time off as she did. It is also not appropriate to infer that, if the Respondent had acted with fairness and objectivity, Curtis would be earning at least as much as the Coordinator is now earning in the amalgamated position. In determining the amount of compensation, I have given consideration to amongst other things - (a) the availability of alternative employment at the Department for Curtis to take up and its relevance to any obligation the Respondent has to minimise or mitigate the effects of the termination; and (b) the failure to pay Curtis any redundancy payment as at 30 September 1994. Taking all the above matters into account, I find that reinstatement is impracticable. I have assessed appropriate compensation for Curtis at $3,000.00. (ii) Younie Younie has not worked in a full-time position since the termination. She is married and has not been the recipient of any unemployment benefit. She has made numerous unsuccessful applications for employment. It is apparent from her answers to the questions put to her in cross-examination that she has not necessarily applied for positions at the level of Program Director or Instructor only. However, in my view, it is not unreasonable for an employee after redundancy to attempt to better their position in preference to less well paid jobs. Broadly speaking, I find on the evidence that her efforts to date have been reasonable and any disinclination to apply for positions in places such as Box Hill is not unreasonable because of matters such as travel time and child care arrangements. The Respondent relied on Younie's failure to apply for an instructor's position at Oakleigh advertised on 15 October 1994. Dunlop is that centre's Chief Executive Officer. Younie gave evidence that she had not applied for this position or any positions in affiliated services because it was her belief that the news of what occurred with the Respondent had affected her professional integrity and, therefore, she did not feel that she could work there. Dunlop took the view that if she had applied there was no reason why she would have been treated differently to any other applicant. Younie had by the date of hearing made some 30 to 40 applications for employment. Accordingly, I am not prepared on the evidence to find that the failure to apply for the Oakleigh job of itself was unreasonable and amounts to a failure to mitigate. Younie's application is for reinstatement. This is a compelling argument because it is the principal remedy contemplated by the Act. As a general rule, it would make a nonsense of the legislation if an employer who, as in this case, was on notice that Younie questioned the fairness of the process and took steps not only prejudicial to her chance of competing for the amalgamated position but also ignored her interest in the locum position and the instructors' positions, could then argue reinstatement was impossible. (See Johns v Gunns Ltd Unreported Northrop J TI 148 R of 1994). However, having acknowledged the abovementioned statement of principle I am further bound to consider some of the factors distinguishing this case from others where reinstatement has been ordered. First, the Respondent relies on structured government funding, the evidence being that it has the present capacity to employ an instructor for only one and half days per week. Secondly, unlike larger corporate concerns, the Respondent's service operates with a small workforce and little flexibility in arranging its workforce. Thirdly, the Respondent no longer has a position of Program Director available. Taking all these matters into account, I have determined that reinstatement is impracticable in the sense contemplated by the majority Full Court decision in Liddell v Lempke 127 ALR 342. Some of the matters weighing in Younie's favour on the question of the amount of compensation are - (a) the 9 months she has remained unemployed without a written reference from her former employer; (b) the lack of fairness and objectivity in the process undertaken by the Respondent which impacted on her chance to continue employment albeit in an alternative position; and (c) the probability that she will not obtain gainful employment immediately. Against the abovementioned matters I have considered the amount of $4,000.00 in severance pay paid to Younie and have assessed appropriate composition at $7,000. THE COURT ORDERS THAT: 1. That within 21 days of the date of this order the Respondent pay Maureen Curtis the sum of $3,000.00 by way of compensation. 2. That within 21 days of the date of this order the Respondent pay Karen Younie the sum of $7,000.00 by way of compensation. I certify that this and the preceding fifty-three (53) pages are a true copy of the reasons for judgment of Judicial Registrar Millane. Associate: Dated: 30 June 1995 Solicitors for the Applicant: Maurice Blackburn & Co Counsel for the Applicant: Ms Young Solicitors for the Respondent: McDonald Slater & Lay Counsel for the Respondent: Mr Borenstein Dates of hearing: 29 May, 30 May, 31 May and 1June 1995 Date of judgment: 30 June 1995