MORISON - v - HONDA AUSTRALIA MOTORCYCLE & POWER EQUIPMENT Pty Ltd [1997] IRCA 36

GENERAL DISTRIBUTION INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 2241 of 1996 B E T W E E N : PERRY MICHAEL MORISON Applicant A N D

HONDA AUSTRALIA MOTORCYCLE & POWER EQUIPMENT PTY LTD Respondent Judicial Registrar: Millane JR Place: Melbourne Date: 25 November 1997 CORRIGENDUM The following amendment is made to the judgment of Judicial Registrar Millane of 21 February 1997: 1. At page 8, last paragraph, line 1, after the words "In his recent" insert the word "decision". Associate: ....................................... Date: 25 November 1997

DECISION NO:36/97 C A T C H W O R D S INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - VALID REASON - whether failure to consult with or forewarn senior employee of impending REDUNDANCY renders the termination unlawful - COMPENSATION - whether compensation payable for distress - CONTRACT OF EMPLOYMENT - whether REASONABLE NOTICE of termination given to employee - whether damages payable at common law for any distress suffered Workplace Relations Act 1996 ss 170DC, 170DE(1), 170EE(2), 170EE(3), 170EE(5) Burazin v Blacktown City Guardian Pty Limited (unreported, IRCA, Full Court, 13 December 1996) Kenefick v Australian Submarine Corporation Pty Ltd (1996) 65 IR 366 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 Victoria & Ors v The Commonwealth (1996) 66 IR 392 Nettlefold v Kym Smoker Pty Ltd (unreported, IRCA, Lee J, 4 October 1996) Kerr v Jaroma Pty Ltd (unreported, IRCA, Marshall J, 7 October 1996) Thomas v Lynch (unreported, IRCA, Wilcox CJ, 20 December 1996) Westen v Union Des Assurances De Paris (unreported, IRCA, Madgwick J, 17 December 1996) Slifka v J W Sanders Pty Limited (1995) 67 IR 316 Quinn v Jack Chia (Australia) Ltd [1992] 1 VR 567 PERRY MICHAEL MORISON - v - HONDA AUSTRALIA MOTORCYCLE & POWER EQUIPMENT PTY LTD No. VI 2241 of 1996 Before: Judicial Registrar Millane Place: Melbourne Date: 21 February 1997 INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 2241 of 1996 B E T W E E N : PERRY MICHAEL MORISON Applicant A N D HONDA AUSTRALIA MOTORCYCLE & POWER EQUIPMENT PTY LTD Respondent MINUTES OF ORDERS Judicial Registrar Millane 21 February 1997 THE COURT DECLARES THAT: 1. On 2 July 1996 the respondent terminated the applicant's employment in contravention of section 170DE(1) of the Workplace Relations Act 1996. AND THE COURT ORDERS THAT: 2. The applicant's application is otherwise dismissed. NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules. INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 2241 of 1996 B E T W E E N : PERRY MICHAEL MORISON Applicant A N D HONDA AUSTRALIA MOTORCYCLE & POWER EQUIPMENT PTY LTD Respondent Before: Judicial Registrar Millane Place: Melbourne Date: 21 February 1997 REASONS FOR JUDGMENT The applicant seeks compensation alleging that the termination of his employment on 2 July 1996 as the respondent's national sales manager contravened the Workplace Relations Act 1996 (the Act). On that date, according to the respondent, as a result of a restructuring of its business the applicant's position was abolished. Because attempts to find alternative employment were unsuccessful it made the applicant redundant. It was agreed that on termination the applicant was paid a total of $37,700 consisting of five weeks' pay in lieu of notice, eighteen weeks' pay (representing three weeks' pay for each year of service), unused sick leave and pro rata long service leave. The last two items were paid without any contractual or statutory obligation on the respondent's part to do so. In addition to the total payment the respondent offered the applicant the equivalent of $5,000 in out-placement services and counselling with Davidson & Associates. These services were not ultimately accepted by the applicant for reasons I deal with below in this judgment. It was conceded by the respondent that it did not forewarn the applicant of the impending termination or consult with him concerning alternative employment. It says that because of the position held by the applicant in sales and the potential negative impact on its business, it decided not to take these steps. What it says it did was explain the position to the applicant, offer him assistance in obtaining employment elsewhere and provide out-placement and counselling services as well as a generous redundancy package. The applicant seeks reinstatement alleging there was no valid reason for termination either because of the restructuring or because of any selection process. There was some early suggestion that section 170DC may not have been satisfied in any selection process, however, having heard the evidence I am satisfied that whilst there was a process of choosing between a New South Wales manager and the applicant for the senior position created by the restructuring, such choice was not based on issues of poor or inadequate performance and therefore section 170DC and the opportunity to explain any allegations of conduct or performance deficiencies was not a relevant consideration. What was relevant was whether there was the application of objective selection criteria where position redundancies occurred and there were alternative positions created for which the applicant and other employees may have been suitable. The applicant's claims under the Act include a claim for compensation for distress and injured feelings arising out of the termination (see the Full Court decision in Burazin v Blacktown City Guardian Pty Limited (unreported, IRCA, Full Court, 13 December 1996)). There was also a claim made by the applicant in the Court's accrued jurisdiction seeking damages in respect to an alleged failure to provide reasonable notice, which the applicant claims should have been in the order of twelve months' notice. A related contractual claim made in the Court's accrued jurisdiction was for damages for distress. However, I am satisfied that there is no proper common law basis for me to entertain this aspect of the common law claims made. This, of course, does not affect the statutory position on compensation for distress recognised by the Full Court in Burazin's case. THE WITNESSES The respondent called the following witnesses: - Stuart Thomas Strickland (Strickland), a director of the respondent company and responsible for the general operations and running of the Australian motor cycle and power equipment division; and - Paul William Jones (Jones), .the respondent's general manager in sales and marketing, responsible for the marketing and sales department. The applicant gave evidence on his own behalf. THE EVIDENCE The respondent is a Japanese owned and controlled business, which at the time the applicant joined on 17 April 1990, sold cars, motor cycles and power equipment. The applicant has a background in motor cycle sales having operated his own business in Queensland for some years before he took up his position in Melbourne with the respondent. In 1991 the business of motor cycle and power equipment sales was split from the motor vehicle sales business and a new company was formed and that company is the respondent to this proceeding. It was agreed that the applicant's employment was to be treated as being continuous. It would be fair to say that the applicant was well regarded by the respondent because over a number of years he was promoted in motor cycle sales, so that by 17 March 1994 he had been promoted to the position of motor cycles marketing manager with an increased package from 1 July 1994 totalling $76,565. The salary component of that package was $52,000 and that remained the relevant salary to the date of termination. In September 1995 the applicant was appointed sales manager and this position included the additional responsibility of liaising with the respondent's state sales managers and their representatives and dealer networks. From 9 October 1995 it appears that the corporate hierarchy of the respondent consisted of the board of directors, which included Strickland, the sales and marketing general manager, Jones, and next in line the applicant as sales manager in the national sphere with the additional responsibility of state sales manager for Victoria and Tasmania. At the relevant time the state sales manager for New South Wales was Ian Juster who was the person the respondent eventually promoted after its restructure. The operational requirements the respondent relied on to provide a valid reason for the abolition of the applicant's position, in my view, were not seriously challenged. It was said by the respondent that its Japanese master sought, by restructuring, to achieve better results from product specialisation and a structure resembling that of its competitors. To achieve its objectives in early 1996 it set about restructuring its sales and marketing division. This involved closing certain state offices and allocating the territory to field staff whilst centralising the operations at head office. It also involved what Strickland referred to as a "flattening out" of the number of management in sales and marketing and getting the staff to do more work with the dealers in the field. Of significance in determining this case is the length of time over which the restructure was considered by the respondent before it was implemented with the sudden, and so far as the applicant was concerned, unexpected termination of his senior position and employment. According to the respondent from 1992 its board had considered a restructuring. The discussion on this matter commenced in earnest in 1995 and in early 1996 Strickland visited Japan and put forward a proposal prepared in late 1995. On his return and by April 1996 he instructed Jones to prepare a plan to implement the restructuring and, in particular, to provide Jones' views on which staff would fill the positions in the proposed reorganisation of the sales and marketing division. This prompted a response from Jones (Exhibit R6) which shows that at least by April 1996 Jones had notionally allocated positions to personnel on the premise that the nominated personnel accepted the positions offered and made various changes such as relocating to another state. The staff proposal as a result of the restructure provided for only one position as sales manager in the motor cycle division answering to Jones. The various field managers in the state territory were as a result of the restructure required to report to the new position of sales manager. To the abovementioned position Jones allocated Ian Juster subject to Juster accepting the position and relocating from New South Wales to Victoria. As of May 1996 it was contemplated by at least Jones that the applicant may be made redundant and there was a suggestion that he may be offered a position as either a field manager or alternatively a position as an "inventory "manager"". The latter position did not exist and was not considered further. In all, it was said that seven positions were lost in the restructuring, however, the applicant was the only person to be terminated on 2 July 1996. Others left and did not accept the positions offered. Some took other positions and some of these also left subsequently. It was accepted by the respondent that the position as field manager was not a true management position and was well below the status and pay of the position the applicant held. By at least mid May 1996 the respondent had determined that the applicant would be made redundant having made an unproductive inquiry of its motor vehicle division to ascertain whether it had a senior position available commensurate with the applicant's position in what the respondent viewed as middle management. The view held by Jones and endorsed by the board was that Juster had demonstrated particularly good skills in managing his state operation and, in particular, had demonstrated an ability to restructure the dealer's network when he took on his state management position. In the week prior to the termination the staff were told that there was to be a restructure but despite approaches from the applicant to both Jones and Strickland, the applicant received no indication or forewarning that a decision had been made to terminate only his employment. One of the explanations given by Strickland for not consulting with or forewarning the applicant prior to implementing the decision to terminate was that this was always the way the respondent effected redundancies. He together with Jones and an adviser from the Australian Chamber of Manufacturers made the decision not to consult with or forewarn the applicant because he "thought it the most appropriate way". From the answers given by the respondent's witnesses generally, it appears that they held the view that it would be difficult for the applicant to remain once notified of the redundancy because of the contact he was required to have with dealers and his involvement in sales. However, it was also Strickland's view that the applicant "was not in a position to make comments". His views indicate quite strongly that the respondent decided to terminate without any real consideration of the possibilities offered by forewarning the applicant and consulting with him about alternative employment. Instead the respondent fixed upon a termination package which allowed for payments such as accrued sick leave and pro rata long service leave and out-placement services which were not part of any contractual or statutory entitlements. The notice paid represented the minimum statutory period but also covered what the respondent perceived as a reasonable period of notice; namely, one month's notice if the applicant had signed the various documents presented to him throughout the period of his employment when he was promoted to more senior positions. When the restructuring was completed a majority of the seven people affected still held management positions and Juster took up the position offered to him. As the person who first constructed and recommended to the board the proposal for Juster to take up the newly created sales manager position, Jones was cross-examined at some length on the criteria applied in selecting one candidate against the other. He confirmed that the grounds for termination of the applicant did not involve any performance related matters where both men were regarded as good employees; rather, it seems that the selection was made by comparing two satisfactory employees without referring to any criticisms of their conduct or performance. It chose to offer Juster the first opportunity to take the position because of what it perceived as his greater skills and indicated to the Court that had he rejected the position the applicant would have been offered it. I accept this evidence as not only evidence of the respondent's intention in its restructuring process but also as evidence indicating that the selection of Juster following upon the decision to restructure was open to the employer where it was left with a choice between employees both of whom were able to fill the new position and neither of whom were the subject of any complaints concerning their performance or conduct (see generally the Full Court's decision in Kenefick v Australian Submarine Corporation Pty Ltd (1996) 65 IR 366). Accordingly, insofar as the respondent carries the burden of showing that there was a need to reduce its management team by reason of a bona fide restructuring plan and, further, insofar as it carries the burden of showing that it made a selection for the newly created position based on objective criteria, I am satisfied that the respondent met the standard of proof required of it. Of course, the need to reduce the management team numbers in the motor cycle division does not necessarily mean that the respondent has established a need to terminate the applicant's employment. The real issue arising under section 170DE(1) of the Act for determination in this case is whether the failure to consult with or forewarn the applicant and the loss of the opportunities such consultation and forewarning presented, impacts on the question of whether at termination there was a valid reason for the termination of the applicant's employment. It has long been accepted in this Court that at the very least the phrase "valid reason" refers to a reason that is sound, defensible or well founded (see the decision of His Honour Justice Northrop in Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371). Following the decision of the High Court in the Victoria & Ors v The Commonwealth (1996) 66 IR 392, the Industrial Relations Court of Australia has had occasion to consider more closely the meaning of the phrase "valid reason" and a line of authority has emerged which, broadly speaking, supports the view that an employer must justify the decision to terminate and in determining whether the decision is so justified, the Court must take into account the effect of the termination on the employee (see generally Nettlefold v Kym Smoker Pty Ltd (unreported, IRCA, Lee J, 4 October 1996), Kerr v Jaroma Pty Ltd (unreported, IRCA, Marshall J, 7 October 1996) and Thomas v Lynch (unreported, IRCA, Wilcox CJ, 20 December 1996)). In his recent in Westen v Union Des Assurances De Paris (unreported, IRCA, Madgwick J, 17 December 1996) His Honour Justice Madgwick had occasion to consider the meaning of the phrase "valid reason" generally as well as specifically considering its meaning in a case where the employee's position was abolished by reason of a bona fide reorganisation undertaken by the employer. In effect, his Honour took the view after a detailed analysis of the legislation, the Convention and established authorities that in determining whether a reason for termination is valid, the appropriate standard of conduct is one that ensures both parties receive a "fair go all around". Because of the impact of His Honour's comments in the case at hand, it is appropriate to set out the following lengthy extract from his judgment: "... relevant Australian courts have a policy choice. The choice ought to be, in my opinion, to treat the values inherent in the judgment of whether a reason for termination is valid as being those values which best accord with the court's conception of broadly accepted Australian community standards. The standard that commanded very broad respect, at least in all respectable quarters, in the public debate of the last couple of years, is that of the "fair go all round". In a triumph of the demotic, that phrase and that concept have indeed now been enshrined in the statute: see the new s 170ca of the Act. Such a standard in my view necessarily involves an examination of the merits of the reasons for termination. It also involves what, from its inception, all judges of this Court have insisted upon: that the relevant legal provisions be applied, in Wilcox CJ's words, in a practical, commonsense way, in order to ensure that both parties to the employment contract really do receive a "fair go". The interpretation to be accorded the phrase "valid reason" appears most problematic in relation to the extent to which a bona fide reason for an employee's termination, which reason is not capricious, should be judicially examined as to its merits. No doubt the Court's approach would proceed on a case-by-case basis, and any effort to re-state the phrase in more concrete form will not soon be essayed. However, the first task is to focus on the relevant enquiry. This is not whether some change in the functioning of the undertaking, which change accompanies or immediately precedes or follows the employee's termination, is made for a valid reason based on the operational requirements of the undertaking. The enquiry is whether there is a valid reason for the actual termination in question. This was brought out by the Full Court's judgment in Kenefick. Thus, in this case, the intended reorganisation which would abolish Mr Westen's former post was bona fide and rationally undertaken with a view to having the respondent trade more profitably. The Court is ill-equipped to enquire further into the actual merits of that decision. There is in any case no evidence which would enable that to be done. There is no reason, therefore, to think that there was not a valid reason, in the sense of its being sound, just or well-founded, for the reorganisation. But there is no acceptable evidence that, consistently with such a reorganisation, there was no reasonably practicable alternative to the termination of Mr Westen's employment or that there was no reasonably practicable and acceptable alternative employment that might have been offered to or arranged with him. In particular, he was not told why there was no such alternative; nor was he invited to propose one. In my view, it will often be difficult for an employer to show that there was no such alternative unless the employee has been offered such an explanation and/or opportunity. It was not a necessary consequence of the staff reorganisation that there would be a termination of any employee's employment which would be unacceptable to the employee: often enough an employee in such circumstances can be acceptably accommodated by the employer in another job, whether "equivalent" to the last one or not. Nor was there any offer to Mr Westen of a redundancy payout or package. That the question of the material consequences of a termination of an employee's employment may be intimately connected with the validity of the reason for termination is, in my view, readily demonstrable. In the first place, the entire purpose of the Convention and the relevant Division of the Act is to do a measure of material justice as between employer and employee. In the second place, to my mind it is clear that it may add to the soundness, justice and good foundation of an employer's reason for terminating an employee's employment that the employer intends voluntarily and adequately to compensate the employee for the loss of his/her job. In the third place, the relevance of the material consequences of a termination to the validity of the reason(s) for the termination may be deduced from the structure of the Division, and from the Convention, themselves. Section 170db is squarely based on Article 11 of the Convention which is in the following terms: "Article 11: A worker whose employment is to be terminated shall be entitled to a reasonable period of notice or compensation in lieu thereof, unless he is guilty of serious misconduct, that is, misconduct of such a nature that it would be unreasonable to require the employer to continue his employment during the notice period." Under s 170db the limited notice therein prescribed, or compensation in lieu of it, must be given unless the employee is guilty of "serious misconduct" defined as "misconduct of a kind such that it would be unreasonable to require the employer to continue the employment during the notice period". Since the s 170db right to notice is, in effect, conditioned on conduct that at least falls short of "serious misconduct", the Convention and the Act themselves view the material consequences of a termination as related to what may reasonably be seen as the degree of validity of the reason for it. The validity of such reason cannot, therefore, be separated from the material consequences of the termination. Section 170de applies to termination of employment whether or not notice pursuant to s 170db or otherwise has been given. A challenged termination may have been effected: (a) without notice; (b) upon the minimal notice periods prescribed by s 170db; (c) more generously, as to notice; and/or (d) in any case with or without any other monetary compensation or solation, or other material balm, e.g. the offer of redeployment to a position of more or less comparable pay and status. In many cases, what, if anything, has been provided to the employee will, for the foregoing reasons, be a relevant, and in some cases a highly relevant, consideration in determining the validity of the reasons for termination. ..." In Westen's case the Court was not satisfied that the respondent had proved that there was a valid reason for termination. There are a number of differences between that case and the one before me, however, the reasoning in Westen's case is apposite when attention is focussed on the failure to provide the opportunity to consider and discuss alternative employment. In Westen's case no package was offered or paid to assuage the effects of the termination on the employee. In the present case the employer took some steps to alleviate the effects of the termination on this employee in both a monetary sense and in the provision of out-placement and counselling services which could assist both with the personal effects of any termination on the employee and the move towards gaining further employment at an early date. The termination itself was effected by Jones. There is a dispute between Jones and the applicant as to whether, as the applicant claims, in a very short interview Jones told him that he was required to be off the premises within fifteen minutes. Jones' evidence supported by a record he says he made at the relevant time, suggests that the discussion was reasonably detailed and opened by him explaining to the applicant the reason for his position redundancy. It progressed to an explanation of the package and out-placement services provided as well as an explanation about the processes involved and the research of other positions. According to Jones, during the meeting he offered the applicant a number of opportunities to ask questions but the applicant refused or showed no interest in discussion. The out-placement consultant was located next to the meeting room at the time of the termination and it took some time to convince the applicant to avail himself of the opportunity to see the consultant. Apart from the package paid the applicant was given the use of his fuel card and car for one further month and, on Jones' evidence, was given the option to clear his desk at his leisure after working hours or leave immediately. Having had the opportunity both to hear the evidence and observe the witnesses, on balance I have accepted Jones' account of the termination meeting as being logical and consistent with the approach the respondent sought to take. In saying this, I have taken into account the applicant's position at termination and his reaction in Court many months later to what happened to him in July 1996. It would be fair to say that the applicant as a good performing employee and someone who had been used to praise from and promotion by his employer was deeply shocked and upset by the circumstances of the termination. I accept that at termination he was non-responsive because he was dealing with something unexpected and unwelcome and in his own words he was distressed, was not composed and was unable to conduct a lengthy conversation. This is an understandable reaction and one which no doubt was contributed to by the decision by the employer not to forewarn him or consult with him about alternative employment. It is apparent that the respondent had some task to convince the applicant to stay and see the out-placement consultant which he eventually did for about ten minutes and then left. In these circumstances, it is unlikely that the respondent gave him fifteen minutes to clear his desk when he was then being encouraged to remain and partake in a counselling session set up for his benefit. It was the applicant's evidence that he attended the counselling out-placement service on one further occasion for forty-five minutes. He gave a number of reasons for not returning. One was that he was concerned over issues of confidentiality, however, this was dealt with by the solicitors providing confirmation that the consultants would not divulge the details of any discussion to the respondent. Despite this reassurance the applicant says he did not feel confident about accepting the service. Significantly he commented on the fact that when he attended the out-placement service's centre he noted that the out-placement office was an "... enormously depressing environment because it was full of unemployed people" and he then took the view that he had the ability to prepare his own resume and prepare himself to seek employment. The conclusion I draw from this evidence is that the applicant made a decision that these services would not assist him and he rejected the opportunity that was offered. At the date of hearing he was not employed although he has been active in seeking alternative employment. FINDINGS On the evidence I am not satisfied that the respondent has discharged the onus it carries of proving that the termination was justified. The principle reason for finding that the respondent has not met the relevant standard of proof is the conscious step the respondent took to keep the knowledge of the impending redundancy from the applicant and thereby deprive him of an opportunity to attempt to resolve the dilemma he faced in losing what was an apparently secure position and also an opportunity of gradually accepting the position he found himself in. In arriving at this conclusion I have carefully considered the obvious steps the respondent took to alleviate the burden of termination, however, in my view these steps of themselves are not to be viewed as an acceptable alternative to actually consulting with and forewarning an employee at the earliest practicable opportunity. Obviously some balance has to be struck between the employer's interests in the smooth and profitable running of its operations and the detriment to the employee in all the circumstances. The wording of section 170EE(3) of the Act, insofar as it deals with compensation, does provide for consideration of all the circumstances when determining whether the payment of compensation is appropriate. This is a case where the circumstances relating to the financial benefits and the out-placement services provided give rise to a payment at termination which exceeds the value of twenty-six weeks' remuneration or the six months' ceiling applicable to any compensation paid pursuant to the Act. Where there is a bona fide redundancy, as I have found there was in this case, this alone may provide in a particular case a compelling argument against the practicability of reinstatement. There is a basis in this case for saying that even with consultation and forewarning the sorts of positions available in the restructured division were not of the seniority the applicant would expect to work in and, therefore, there was a probability that even if he had been offered the opportunity he missed, he may have left anyway soon after any consultation and forewarning. These matters persuade me that reinstatement is not practicable. On the question of whether an award of compensation is appropriate in all the circumstances, I take the view that it is not because of the amounts already paid to the applicant. Section 170EE(2) requires that the Court have regard to the amount that the applicant would have received or would have been likely to have received if his employment had not been terminated. In his decision in Slifka v J W Sanders Pty Limited (1995) 67 IR 316, His Honour Justice North canvassed a range of matters relevant to the assessment of compensation. These included the following items, which are all relevant to assessing compensation in the present case: (a) the loss of wages between the date of termination and the date of hearing; (b) the loss of the company car and in the present case the fuel card; (c) the loss of ongoing long service leave; (d) contingencies relevant to losses assessed from the date of hearing into the future which require a deduction from the amount awarded; and (e) the impact of taxation on any amount payable and consequent on termination. Against the sum of the relevant items the Court must apply the ceiling provided for in section 170EE(3), so that if the total of the abovementioned considerations exceeds, in this case $26,000, the applicant can only receive the maximum provided for by the Act. In addition the Court may make an order for damages under section 170EE(5) if the period of statutory notice has not been worked or compensated for. In this case the evidence is that the applicant received five weeks' compensation in lieu of notice. Notwithstanding this, however, as can be seen the amounts paid in addition to the compensation paid in lieu of notice still exceed the six month statutory ceiling. Had I been left with the task of determining the amount of compensation payable in the absence of any payments made, just focussing on the monetary elements of compensation, I would not have been disposed to award compensation up to the six month remuneration ceiling because of the likelihood of the employment ending before the expiration of six months after the date of termination irrespective of any forewarning or consultation. The employee's disinclination to use the out-placement services is also a consideration in determining whether he may have been assisted to an earlier resumption of employment had he availed himself of this opportunity. The applicant also sought compensation for distress. This is a case where the applicant was clearly distressed and the respondent added to that situation by its conduct. Given the decision of the Full Court in Burazin's case, I would have been favourably disposed to an award of some limited sum of compensation for distress if the compensation already received by the employee had not exceeded the cap. REASONABLE NOTICE It was accepted by both sides that there was an implied contractual term that the contract of employment would only be terminated on reasonable notice. In this case, whilst there was some evidence of a contract document providing for one month's notice only, there was no evidence that this had been agreed to. The respondent adopted the position that given the applicant's level of seniority, period of service and the sorts of matters addressed by His Honour Justice Ashley in his decision in Quinn v Jack Chia (Australia) Ltd [1992] 1 VR 567, any reasonable notice should not exceed three months and at the very outside six months. In my view the maximum period of three months' notice would have properly reflected the level of the applicant's position, age, period of service and wage structure. Again because he has received payments exceeding that period I do not accede to any application for an order for damages for payment of any further sum. Accordingly, the order I propose to make in this proceeding is that there has been a contravention of section 170DE(1) of the Act and further order that the applicant's application is otherwise dismissed. MINUTES OF ORDERS THE COURT DECLARES THAT: 1. On 2 July 1996 the respondent terminated the applicant's employment in contravention of section 170DE(1) of the Workplace Relations Act 1996. AND THE COURT ORDERS THAT: 2. The applicant's application is otherwise dismissed. NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules. I certify that this and the preceding sixteen (16) pages are a true copy of the reasons for judgment of Judicial Registrar Millane. Associate: Dated: 21 February 1997 Solicitors for the Applicant: Thompson & Thompson Counsel for the Applicant: Mr P. Burchardt Solicitors for the Respondent: Dunhill Madden Butler Counsel for the Respondent: Mr F. Parry Date of hearing: 24 & 28 January 1997 Date of judgment: 21 February 1997