Robert Cummins v Sunraysia Rural Water Authority [1995] IRCA 539

INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 2209 of 1994 B E T W E E N : ROBERT CUMMINS Applicant AND SUNRAYSIA RURAL WATER AUTHORITY Respondent Before: Judicial Registrar Staindl Place: Melbourne Date: 3 October 1995 REASONS FOR DECISION It is unusual for someone to remain with the one employer (or its successors) for almost 30 years. It is more unusual for such a person to be selected for redundancy with one of the reasons being that the person's performance of his/her duties has been unsatisfactory over a lengthy period of time. That is the situation in this case. Robert Cummins (the applicant) commenced work in 1965 with the State Rivers and Water Supply Commission. It became the Rural Water Commission, then the Rural Water Corporation and finally (insofar as the applicant is concerned) the Sunraysia Rural Water Authority. This Authority came into existence on 1 July 1994 and was the employer respondent in the present proceedings. Background In September 1993 a report was prepared for the Board of Directors of the Rural Water Corporation concerning that Corporation's Sunraysia Region. It was known as the "Wheeler Stobel Report" and recommended a restructure of the (then) Corporation's activities in the Sunraysia Rural Water Authority as the basis of a restructure. The report recommended the introduction of teams or work groups within the Authority's Customer Services Department. Two separate work groups were to be established within this Department, the Customer Support Group and the Systems Operations and Control Group. Prior to the restructuring, the applicant had worked in the Customer Support Group area. The appointment of teams pursuant to the restructuring took place on 5 September 1994 although it was anticipated that some further restructuring would occur following automation of certain procedures. The applicant applied for one of the positions in the Administration team within the customer support group. He was appointed to this position and the applicant relied heavily on this fact given that it occurred only two months prior to his termination. The other members of the team appointed at this time were Sue Andriske and Michael Malcotti. A fourth member of the team, Fiona Heley, was appointed on about 3 October 1994, although she had previously worked with the respondent's predecessors between 1977 and 1986. None of the team members had anything approaching the applicant's length of service. In a newsletter of the respondent dated 18 August 1994 reference was made to the selection process of the teams and it was said:- "In many cases, the number of nominations for positions will be equal to the number of available positions. Therefore, provided all have the skill levels required, those teams will have been largely self appointed." The applicant relied on the second sentence of this extract to argue that he must have had the skill levels required for the position, although this was vigorously contested in these proceedings. Circumstances of termination In November 1994 - two months after his appointment - the applicant was told that his position was redundant. I set out the text of a letter dated 9 November 1994 addressed to the applicant:- "Murray Sunraysia Water has recently modified its organisational structure to provide an enhanced customer focus and separation of operational activity from maintenance activity. You will be aware that as part of this process we have introduced a "team" structure. As a result of a review of the customer support team, fewer people than currently employed will be needed in the future. Consequently I have to declare your position redundant and advise you that your employment with MSW (Murray Sunraysia Water) shall cease as of Tuesday 28 February 1995. As a surplus employee, you will, of course be eligible for a termination package. Details can be obtained from Janet Dawes. Should you wish to discuss any aspect of this matter, or wish to separate earlier than February 28, please advise me. Yours sincerely CHRIS STOLTZ Chief Executive Officer Murray Sunraysia Water" The applicant had no warning that consideration was being given to making his position redundant. In fact he was told of this decision while he was attending a trade union course in Melbourne. More will be said about this letter. A letter in indignant terms was sent the following day by Mr Boness, an industrial officer with the Community and Public Sector Union (CPSU), the applicant's union, to Mr Stoltz. An application under s.170EA of the Act was filed in this Court on the following day, 11 November 1994. When the applicant tried to resume his work duties the following week he was told that he was not wanted there. In fact Mr Stoltz subsequently told the applicant that he didn't want him working there any more because he'd made an application in the Industrial Relations Court. The applicant agreed that he would not attend at work but would receive full pay for a short period, until a meeting occurred in late November between an official from the CPSU and Mr Stoltz. This meeting did not take place and the next event of significance was a conciliation conference which occurred on about 20 December 1994. Following the conciliation conference a meeting was held at the respondent's offices. The applicant attended along with Mr Boness, his union representative. From the respondent's side Mr Stoltz attended along with Mr Peter Hartshorn (the customer support co-ordinator) and Brent Godkin (customer services manager). Compromise of Proceeding It was argued on behalf of the respondent that the parties reached an agreement at this meeting and accordingly the proceeding ought to be permanently stayed. The respondent led evidence in support of this argument from Mr Stoltz, Mr Godkin and Mr Boness, and the applicant gave evidence in reply. The argument was put very forcefully on behalf of the respondent and the issue has troubled me. I will therefore deal with the evidence on the point in some detail. Mr Stoltz gave evidence that he said that he was concerned to ensure that the applicant was given a fair go and that the respondent would do everything it could to assist him in redeployment and would financially compensate him according to the normal redundancy procedures. The applicant stated that he wanted his job back but Mr Stoltz, said that was not an option. Mr Stoltz said words to the effect that he was not going down the path of the redeployment process if it was still going to result in a court hearing. He gave evidence that the understanding reached at the meeting was that the matter would be settled by allowing the applicant to participate in the redeployment process and, failing that, to be given some sort of separation package. He was then shown a copy of a letter dated 21 December 1994 from the CPSU to the respondent which he said confirmed the agreement. Mr Godkin's evidence was far less clear. He did not recall any mention of the court proceedings by Mr Stoltz. He said that if certain undertakings were carried out by Mr Stoltz then there would be no requirement to proceed in Court. These undertakings were that Mr Stoltz would facilitate the applicant's inclusion in the redeployment process and secondly that a sum of money would be offered in settlement of the redundancy. He also said that money sums were not discussed at the meeting. He said further that Mr Boness stated that he would get back to Mr Stoltz and confirm the outcome of the meeting in writing. As previously noted, Mr Boness, the applicant's representative at the time, was called to give evidence on this point by the respondent. He gave more detailed evidence about what was said at the meeting than other witnesses, and from this point of view his recollection gains credibility. In his evidence-in-chief Mr Boness said very clearly that it was stated at the meeting if the package of arrangements were made available to the applicant then he would seek to defer a listing in the Court of the unfair dismissal application. When asked specifically by Counsel for the respondent what was to eventually happen to the proceeding he replied that "Well, we just left that in abeyance at that particular point in time." He was asked in another way by the respondent's Counsel as to his understanding of the future of the Court proceedings and he replied that he really didn't consider (it), but that there had been agreement on a process. When asked whether Mr Stoltz had said anything at the meeting about the Court proceedings he replied: "I can't recall, but I do know that as part of the understanding we reached that day that I was to notify the Commission that we would defer a listing - which I did." He then sent a letter dated 21 December 1994 to confirm the arrangements which "would assist all of the parties to clearly understand what it was that we had arranged at that meeting." Mr Boness said that at the meeting Mr Cummins was told emphatically by Mr Stoltz that he wouldn't be getting his job back, but that nothing was said about the applicant wanting to pursue it. Nothing was to be done about the Court proceedings except to seek a deferment at that stage. In cross-examination Mr Boness agreed with the proposition that if there had been a settlement reached on 20 December then he would have filed a Notice of Discontinuance. He also agreed that the applicant wanted to stay employed and if he did not obtain another job he would be able to pursue reinstatement. Mr Boness' evidence in re-examination seems to me to be inconsistent with his earlier evidence. He stated that the applicant had a choice: either to participate in the redeployment process or go to the Court (although the unfair dismissal claim was still "as per the letter"). He gave two different reasons for not withdrawing the application: firstly that he wanted to ensure that the process was actually commenced and then secondly because it was "an oversight". He stated that following the meeting there was still a possibility in his mind that the application in this Court would have to come back on. But as at 28 February he was satisfied that "the agreement" was implemented and it would have been appropriate to withdraw the application. The applicant's evidence on this meeting was brief. He gave evidence that Mr Boness stated that he would have the union defer the listing of the application to the Court, and it could be brought on at a later date if there was no satisfactory resolution to the applicant's employment. It is trite to say that people's recollections of events differ. So it is here. In such situations contemporaneous written records are all the more important, and in this regard Mr Boness' letter dated 21 December 1994 to Mr Stoltz is noteworthy. It reads: "Thank you for your cooperation and assistance on Tuesday 20th December 1994. Please find for your consideration and endorsement the "without prejudice" process discussed. This process is not intended to prolong an outcome but to ensure that Mr Cummins has every opportunity to secure ongoing employment through redeployment. 1. Mr Cummins will apply for and remain on recreation leave until mid-January. 2. On returning from leave Mr Cummins will actively participate in the redeployment process with the assistance of Sunraysia Rural Water Authority and the Government Sector Workforce Management Unit. 3. During redeployment if necessary, Mr Cummins will be supported with respect to: