DECISION NO: 468/96 IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. NI 1332 of 1996 BETWEEN DARREN WAYNE TOLRA Applicant AND SANFORD TRANSPORT INDUSTRIES Respondent BEFORE: WALKER JR PLACE: SYDNEY DATE: 2 OCTOBER 1996 REASONS FOR DECISION This is an application pursuant to s 170EA of the Industrial Relations Act 1988 for unlawful termination of employment. It is the applicant's claim that he was terminated after he refused to transfer his position from the Mascot office to Wetherill Park. He seeks payment in lieu of notice in accordance with s 170DB and four weeks' redundancy pay. The applicant, Darren Wayne Tolra, was employed by the respondent on 14 April 1994 as a Sales Executive on a salary of $30,000.00 plus a fully maintained vehicle. In about September 1994 he was involved in a motor vehicle accident resulting in him being charged with a high level PCA and the loss of his licence for two years. He admitted in cross-examination that without his licence he could have been dismissed from his position. He also conceded that his employers went out of their way to arrange alternative employment for him and swapped his position with the air flight co-ordinator at Mascot. This position was a one man operation and he was to receive less pay at $26,000.00. He said he had discussed a transfer to the Wetherill Park office at this time, but that Mr Richardson and Mr Rhodes had said, "... they did not believe I would be reliable enough to get there to and from work every day." The applicant said that in late 1995 he had discussions with the General Manager, Mr Brian McCaw, about the profitability of the Mascot branch and was asked by Mr McCaw to suggest changes to make the branch more efficient. The applicant complied with this request however it was decided by management that the Mascot office was to be closed down and amalgamated with the Wetherill Park depot. In fact all the other branches in the Sydney area were closed and consolidated at Wetherill Park . The reason for this was that there was a general restructure of the company Australia-wide due to losses suffered and the applicant agreed that he was well aware that restructures and redundancies were being made. The applicant said that in early February 1996 he was told by Mr McCaw that the Mascot Division was going to close down and that he needed to get himself out to Wetherill Park in a few days. The applicant said he told Mr McCaw that he was not able to get out to Wetherill Park because of the travelling time involved by public transport, but was willing to listen to alternatives available. He said Mr McCaw had replied that there were none and that he was not giving him a redundancy and to present himself for work. On the 21 February 1996 the applicant sent the following letter to The Managing Director and Mr McCaw, the General Manager: "In reference to my meeting with Ron Moynihan and subsequent telephone conversation with Brian McCaw today (21-2-96) I do not accept the proposed changes to my contract of employment. As you are aware, I am employed as Air Freight Co-Ordinator of Sanford Air Division at Botany and live at South Hurstville. I have no drivers licence and cannot get to Wetherill Park by public transport. I cannot do my present job at Wetherill Park, and it is not clear exactly what you are offering me. As I explained to Ron today and Brian yesterday I am willing to consider any reasonable alternative, but I cannot work at Wetherill Park." On the 26 February 1996, the General Manager, Mr McCaw replied to the applicant's letter as follows: "Dear Mr Tolra Re Your Employment. I acknowledge receipt of your letter dated 21st February 1996. As you are aware the Company's premises at Caringbah and mascot have closed. As a consequence and as you are aware, operations are now based from the Company's premises at 17 Frank Street, Wetherill Park. Your position as Air Freight Co-Ordinator will, in future, be conducted from the Wetherill Park, as I advised you last Tuesday February 20th 1996. I reject your suggestion there has been a change of your contract of employment and whilst I regret travelling to the Company's premises may inconvenience you, I required you to present yourself to work at Wetherill Park last Thursday February 22nd at 8.30 am and you chose to ignore the request. I now require you to present yourself to work at the Company's Wetherill Park premises at 8.30 am on the 27th February 1996. In the event you refuse to work in accordance with the Company's instructions, I shall have no alternative but to consider that you have withdrawn your services from the company as at the end of work today February 26th and instruct the pay office to finalise your employment accordingly. I urge you to consider your position carefully and look forward to seeing you at work tomorrow." This letter was hand-delivered to the applicant at the Mascot office on 26 February. The applicant agreed in his cross-examination that at the time he was just "holding the fort" with no work to do as it had all been transferred to Wetherill Park. The following day the applicant failed to follow out Mr McCaw's instructions and did not attend the Wetherill Park depot. He telephoned Mr McCaw at about 2.00 pm on that day and informed him that he was not going to Wetherill Park. Mr McCaw informed him that as a consequence his pay would be made up and sent to him. This was done in due course, with one week deducted for payment in lieu of notice. It was the applicant's claim in this matter that the reason he did not wish to work at Wetherill Park was because of the length of travelling time to get there and also because he was unsure as to what his role would be when he got there. However, in cross-examination the applicant gave the following evidence: Q: It is the case, is it not, that you took the view that that was inconvenient to you and that was not a move that you were prepared to be involved in? A: That's correct. Q: That was the reason why you did not want to go to Wetherill Park? A: That's right. Q: That, I put to you, was the only reason why you did not go to Wetherill Park? A: That's right. There was ample evidence to support the respondent's claim that the applicant was informed throughout the discussion regarding his relocation to Wetherill Park that his position would be the same and I am satisfied that he was always assured of this. The only reason for his failure to follow his employer's instructions was his reluctance to travel to Wetherill Park. I am therefore satisfied that this is not a case of redundancy, as the applicant's position was still available at the Wetherill Park Depot. Was the transfer a repudiation of the employment contract? The applicant lives in South Hurstville and had little difficulty in travelling to his work at Mascot by public transport every day. He was quite willing to accept this change of workplace when it suited his convenience when he lost his licence, but when his employer is forced because of economic problems to consolidate its operation into the one depot at Wetherill Park, he says he is willing to "listen to alternatives available". By this statement I take it the applicant really meant that he wanted a redundancy package. He was well aware that there was no alternative site available other than the Wetherill Park depot, and as he was the only person working at Mascot it is understandable in the circumstances that the operation should be closed down. The applicant gave conflicting evidence when asked in cross-examination as to whether he had made any inquiries as to the operation of a car pool by employees of the company. On page 17 of the transcript, he was asked at point 8, Q: Did you make any inquiries about whether there were car pools being operated by employees of the company out at Wetherill Park? A: I did, yes. Then at line 26 he was again asked, Q: Did you make any inquiries whether there was a car pool or pools being operated by the employees at Wetherill Park? A: No, I did not. When then asked by Counsel that if a car pool had been available, if it was possible that he could have been collected from a railway station, the applicant said that it was possible. The fact is that many of the company's employees lived in the St George and Sutherland areas and were now required to travel to Wetherill Park. There are a number of train stations on the Cronulla-Sutherland train line where the applicant could have easily been picked up by fellow employees. It must also be taken into account that the applicant was due, within a few more months to receive his driving licence back, so the short term inconvenience of arranging a lift would have been reasonable in the circumstances. As to the applicant's understanding that his position was to be retained, the following evidence was given: Q: Now in the third paragraph, Mr McCaw was telling you your position as Air Freight Co-ordinator would be conducted from Wetherill Park? A: Correct. Q: So you knew your position was going to be maintained? A: Yes. Counsel for the applicant argued that the direction to the applicant that he was now to work at Wetherill Park was, in the absence of any express or implied term, a variation of the contract of employment and therefore a repudiation of the contract. In support of this proposition he relied upon a decision of the Full Bench of the Australian Industrial Relations Commission by their Honours Justice Munro, Deputy President MacBean and Commissioner Griffin in Re Rubber, Plastic & Cable Making Industry (Consolidated) Award 1983 (1989) 31 IR 35. This case was an appeal from a decision of Commissioner Bain concerning a dispute which arose following the closure by a company of its Annandale factory and the transfer of its operations to a factory at St Marys. Of the 45 employees of the Annandale factory offered a transfer to St Marys, 22 accepted and the Union brought a claim for 10 employees who did not accept the transfer. Consideration was given to the question as to whether the offer of and the availability of similar work at St Marys defeated the claim that the employer's reason for termination was that it no longer wanted the job to be done by anyone. At page 48 the Commission said, "In determining this issue a legalistic or restrictive definition of what constitutes "the job" in a particular case is not appropriate in construing an award of this kind... In our view the reference in the award to "the job the employee has been doing" is not confined either to the piece of work and physical functions performed for the employer, or to the duties and associated terms of employment of a position. Rather, the term is used in a colloquial sense with a framework of reference related to everyday usage in which work and matters such as conditions of employment and status are all part of an amalgamated notion. The reference to "the job" is primarily a reference to the physical and mental tasks carried out for the employer, but aspects of the work, including location of the work, are not excluded from consideration as elements of the job... For the location of employment to be accepted as an element of the job for the purposes of testing a redundancy situation, performance of work at a particular location needs to have been a term of the particular employment... A relocation will not be in breach of the contract of employment if transferability within employment is an express or implied term of the original contract of employment, or if there has subsequently been a consensual variation of the terms of employment by agreement expressly made between the parties or able to be implied through conduct of the employer and employee." It was clear in this case that the employees accepted employment with the company on the basis that the work was to be carried out at Annandale and several witnesses gave unchallenged evidence to that effect. This, the Commission said, was a central element in the contract of employment. They then found that there was no implied term in the contract under which the employer could require transfer to St Marys. The Commission went on to say at page 50, "We emphasise that the application of these principles must turn upon the facts and merits of each particular case. Structural adjustment of Australian industry demands a relatively high level of organisation and employment mobility. It would be contary to the public interest if liability for payment of severance benefits were to become a disincentive to necessary relocations of employment associated with organisational change. A careful assessment of the contract of employment and the surrounding circumstances is necessary to establish whether there is merit in a claim that a redundancy has been generated by a relocation of employment." In the present case, the applicant had been willing to accept a change of workplace to suit his circumstances and it is certainly clear that he understood that his position would be retained when he was relocated to Wetherill Park. There would certainly be some inconvenience to him for a short time until he regained his driving licence. However, by his actions I am satisfied that there was a consensual variation of his contract when he agreed to move to the Mascot office implying a term that the location of his position could be changed to suit either party if the circumstances arose. (See Jones -v- Associated Tunnelling Co. Ltd [1981] IRLR 477 at page 480.) In all the circumstances I therefore find that the application should be dismissed and I do so order. I certify that this and the preceding nine (9) pages are a true copy of the reasons for judgment of Judicial Registrar Walker. Associate: Date: 2 October 1996 APPEARANCES Counsel for the applicant: R. Reitano Solicitors for the applicant: R.J. Benjamin & Co. Counsel for the respondent: S. White Solicitors for the respondent: Freidman Reeves Date of hearing: 24 July 1996 Date of judgment: 2 October 1996 IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. NI 1332 of 1996 BETWEEN DARREN WAYNE TOLRA Applicant AND SANFORD TRANSPORT INDUSTRIES Respondent Before: WALKER JR Place: SYDNEY Date of hearing: 24 JULY 1996 Date of judgment: 2 OCTOBER 1996 MINUTES OF ORDER THE COURT ORDERS THAT: 1. The application be dismissed. Note: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules. CATCHWORDS INDUSTRIAL LAW - UNLAWFUL TERMINATION - whether relocation an implied term of EMPLOYMENT CONTRACT Industrial Relations Act 1988 ss 170EA, 170DB Re Rubber, Plastic & Cable Making Industry (Consolidated) Award 1983 (1989) 31 IR 35 Jones -v- Associated Tunnelling Co. Ltd [1981] IRLR 477 DARREN WAYNE TOLRA -v- SANFORD TRANSPORT INDUSTRIES No. NI 1332 of 1996 Before: WALKER JR Place: SYDNEY Date of hearing: 24 JULY 1996 Date of judgment: 2 OCTOBER 1996