DECISION NO:237/97 C A T C H W O R D S INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - VALID REASON - whether refusal by employee of alternative position was conduct that justified termination - whether alternative position offered to the employee accorded with an agreement entered into by the parties and contained in an order made by the Employee Relations Commission of Victoria - COMPENSATION - whether loss of future opportunity to elect to take a redundancy package a compensable item - COSTS - whether the application to dismiss the reinstated claim was an unreasonable act in connection with the conduct of the proceeding Workplace Relations Act 1996 ss 170DE(1), 170EHA, 347 Employee Relations Act 1992 (Vic) s 38 Income Tax Assessment Act 1936 Fenech v Perfect Health Medical Centres Pty Ltd (unreported, Industrial Relations Court of Australia, Marshall J, 2 May 1996) MALCOLM DENZIL HOGAN - v - OLEX CABLES No. VI 1800 of 1996 Before: Judicial Registrar Millane Place: Melbourne Date: 6 August 1997 INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 1800 of 1996 B E T W E E N : MALCOLM DENZIL HOGAN Applicant A N D OLEX CABLES Respondent MINUTES OF ORDERS Judicial Registrar Millane 6 August 1997 THE COURT DECLARES THAT: 1. On 27 May 1996 the respondent terminated the employment of Malcolm Denzil Hogan in contravention of the provisions of the Workplace Relations Act 1996. AND THE COURT ORDERS THAT within 21 days of the date of making these orders: 2. The respondent pay to the applicant the sum of $12,405.80, less any amount payable to the Commissioner of Taxation pursuant to the Income Tax Assessment Act 1936 and actually paid. 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 1800 of 1996 B E T W E E N : MALCOLM DENZIL HOGAN Applicant A N D OLEX CABLES Respondent Before: Judicial Registrar Millane Place: Melbourne Date: 6 August 1997 REASONS FOR JUDGMENT In this proceeding the applicant seeks compensation alleging that on 27 May 1996 his employment by the respondent as a forklift driver was unlawfully terminated. He does not seek reinstatement. This case has a long history, the application having first been filed with the Australian Industrial Relations Commission on 29 May 1996. It was originally fixed for hearing on 16 September 1996 on which date, by consent, it was struck out with a right of reinstatement. The application was reinstated and fixed for hearing in early April 1997. On 3 April 1997, in response to an earlier notice of motion filed by the respondent, I dealt with a preliminary application to strike out the reinstated claim because it was alleged that on 16 September 1996 the parties entered into a binding agreement to settle the claim. In my reasons for decision handed down on 2 May 1997 I ordered that the application be relisted for hearing, finding then that, amongst other things, no binding agreement settling the applicant's claim existed and, therefore, the applicant was entitled to proceed to litigate his claim on its merits. On the further return of the application, the respondent having failed to establish a binding compromise, the applicant's counsel, Ms Doyle, applied pursuant to section 170EHA of the Workplace Relations Act 1996 (the Act) for an order for costs in the sum of $2,418.00 relating to the return of the respondent's notice of motion on 18 March 1997 and the hearing on 3 April 1997 of the preliminary application to dismiss the claim. The abovementioned application was made following notice to the respondent foreshadowing such an application. At hearing the respondent opposed the costs application and, without prior notice to the applicant, made a cross-application for its costs in relation to these appearances. I heard argument from both parties on the costs issue and indicated that I would hand down my decision on the costs claims at the same time as my reasons for judgment on the principal claim. On the principal claim the respondent defends the allegation made by asserting that in May 1996 the only position available for the applicant to work in was in forklift driving and testing. At that time, after a lengthy absence, he was offered a position created especially for him combining, it says, both forklift driving duties and testing duties. He refused to accept the position offered and after being warned was terminated, both because he had refused to return to work as directed and because the respondent said it then had no position available for a permanent forklift driver. In his closing submissions to the Court the respondent's counsel, Mr Turner, submitted that the failure to return to work in the position offered amounted to an abandonment of the applicant's employment. As will be seen from the summary of relevant evidence below, the respondent's witnesses indicated to the Court that in May 1996 there was, in fact, a position for a full time permanent forklift driver available in the respondent's store, from approximately November 1995 until December 1996 when the position was amalgamated with another position or abolished, apparently in keeping with the respondent's policy to no longer employ full time forklift drivers. The respondent's uncontested evidence was that, in accordance with enterprise flexibility principles and the award conditions applying to that workplace, permanent full time forklift driving positions were being phased out and its machine operators and other employees were all being encouraged to engage in skills enhancement programs, including obtaining forklift driver licences. Whatever the terms of those arrangements and the awards were, the witnesses all agreed that the employees were told by the respondent that they would not be forced to acquire new skills. THE WITNESSES The respondent relied in the main on the affidavit evidence of the following witnesses: - Michael Shannon Heaney (Heaney), a facilitator in the respondent's Paper Impregnated Leaded Cable (PILC) section at the relevant time; - Bernard John Jacobs (Jacobs), a process worker with the respondent and the union shop steward; - Peter Daryl Thompson (Thompson), an organiser with the National Union of Workers; - Colin Geoffrey Flavell (Flavell), a risk and safety manager with the respondent; - Charlie Bonavia (Bonavia), the manufacturing co-ordinator/supervisor in the respondent's production and stores sections; - Mario Bezzina (Bezzina), the personnel manager in the respondent's power and industrial division at the relevant time; and - Wayne Humphrey Otter (Otter), the respondent's human resources manager. The affidavits of the respondent's witnesses were tendered in evidence subject to a number of objections which I upheld in relation to various parts of those affidavits. The applicant gave evidence and called evidence from two other witnesses: - Michael Cwietkowski (Cwietkowski), a former employee forklift driver with the respondent at the relevant time; and - Alp Bekcioglu (Bekcioglu), a former employee test operator with the respondent at the relevant time. BACKGROUND The applicant was first employed by the respondent in 1997 as a machine operator. By 1986 he worked as a forklift driver in the copper department and was classified as a forklift driver. 1992 saw the applicant transferred to the PVC department to a forklift driving and testing position. By 1994 the respondent had commenced some restructuring and in 1995 the applicant commenced working in the high voltage PILC department performing forklift driving and testing duties. In mid 1995 Heaney was, what he described as, a facilitator in the PILC department. This involved him in supervising and allocating tasks to the employees in that section including the applicant who was one of three or four employees with forklift driving licences. It is apparent from the evidence that from at least 1992 there was some disagreement from time to time between the applicant and Heaney over the applicant's proper classification. In mid 1995, even though Heaney agreed that the applicant was classified and paid as a forklift driver, he was of the view that the applicant was in fact a machine operator assisting in testing preparation and driving a forklift when required. In contrast, the applicant identified the former duty as his principal activity in the position he was then employed in. In 1992 there was a dispute between the two men as to the applicant's classification which was resolved in favour of the applicant being transferred to the testing area and retaining a classification as a forklift driver. Because of the disputes between the two men concerning the applicant's classification and, bearing in mind his actual classification and the rate at which he was paid in 1995, I formed the view that Heaney's evidence on the classification issue and the principal duties performed by the applicant was not plausible evidence. From June 1995 discussion commenced concerning the applicant's skill level on the machines and these discussions involved the union representatives. On 6 July 1995 I am satisfied on the evidence that Heaney instructed the applicant to perform duties other than forklift driving duties which were then being performed by a machine operator. The applicant told Heaney he was a forklift driver and refused to perform the alternative duties he was directed to perform. It was also the applicant's evidence that he told Heaney that he did not have the skills to operate the machine he was then being asked to operate. Jacobs, as the shop steward, intervened in the dispute and supported the applicant in his contention that he was being asked to perform work outside his classification. Heaney was not persuaded by their arguments and proceeded to suspend the applicant for disobeying his orders. This action precipitated a one day strike. However, so far as the applicant was concerned, he by then had attended for medical treatment and was certified as unfit for work for two weeks due to stress. In the latter part of July 1995 the applicant attempted to return to work and there then ensued discussion about what duties he would perform. The uncontested evidence of the applicant, Jacobs and Thompson is that the applicant was informed by the union that an arrangement had been made with one of the respondent's managers, Hobbs, for the applicant to return to the PILC department and perform his duties driving a forklift and assisting in test preparation when forklift duties were not available, pending a permanent full time position becoming available in stores from the latter part of 1995. Jacobs' evidence was that he was told there were two early retirements pending in that section. Hobbs did not give evidence. However, the respondent did not dispute that Hobbs made the representations the union representatives allege he made, which representations, after they were conveyed to the applicant by Jacobs, prompted his return to work and a meeting with Bezzina and Heaney. It was common ground that when the applicant met with Bezzina and Heaney he referred to the arrangement for him to go to stores, however, neither Bezzina nor Heaney were aware of this arrangement. As a result the meeting disbanded and Bezzina indicated that he would seek clarification of this matter. Inquiries made by Bezzina confirmed the arrangement made. Notwithstanding this Bezzina claimed that he had no opportunity to remedy the situation because by the time he spoke to Hobbs the applicant had gone off work again on sick leave suffering from a stress related condition. Bezzina did not pursue the arrangement any further and somewhat inconsistently suggested in his evidence that the arrangement was not a "real deal it was just something that was discussed". This evidence conflicts with the clear evidence of both Jacobs and Thompson, the union representatives who were called to give evidence by the respondent, not the applicant. On or about 28 July 1995 the applicant initiated a Workcover claim and that claim was the subject of both a conciliation hearing in October 1995 and the issuing of County Court proceedings. In the latter part of 1995 there were communications between the respondent and the applicant's solicitors relating to his Workcover claim and his employment situation. Suffice to say that the applicant believed his job was in jeopardy and on 10 November 1995 he made an application to the Victorian Employee Relations Commission pursuant to section 38 of the then Employee Relations Act 1992 (Vic). That application was the subject of conciliation conferences on 17 January 1996 and 7 February 1996. On the lastmentioned date the parties, who were legally represented, settled the application with the following order being made by the Commissioner (Exhibit A2): ""The matter is resolved between the parties and the Applicant withdraws his proceedings before the Commission on the following basis. Mr Hogans (sic) duties will be to 1. Day to day driving of the forklift as required; when not required 2. Undertake various tasks in the test area. Further, Mr Hogan shall be offered the first permanent Forklift Driving position when it becomes available."" It was agreed by Bezzina who attended the conferences on behalf of the respondent that the applicant was in February 1996 seeking an undertaking from the respondent that he be given the first available forklift driving position. This undertaking was then embodied in the agreement which became a final order of the Commission. It was further conceded by Bezzina that when the agreement was reached before the Commission the applicant's solicitor informed the respondent that the applicant would not be returning to work until he was cleared by his doctor for a resumption of his duties. From early March 1996 the applicant was certified as fit to return to work for four hours per day, five days per week. Because of this the respondent advised the applicant not to return to work until he was fit for normal duties. On 13 May 1996 the applicant again presented for work at a time when the medical certificate contained some anomalies which required clarification. By the next day the applicant was cleared for normal duties. When he attended he was met by Jacobs, Thompson, Bezzina and John Allen from the respondent's test development area. At that meeting the applicant was presented with a written position description for a position as a Development Test Assistant. The union representatives both felt that the applicant should accept the position offered because they believed it offered him similar duties; although not the same ones as previously performed by him. This I understood to refer to the test duties he previously performed because the position function and the responsibilities described in the position description document make no direct reference to any forklift driving duties. The applicant indicated at that meeting that he wanted to seek the advice of his legal advisers and the meeting was concluded to allow him to follow this course. In a letter dated 15 May 1996, containing a copy of the position description and addressed to the applicant by Bezzina (Exhibit A6), the respondent makes the following relevant comments: "It is clear that the duties outlined in the position description meet the conditions agreed to by all parties before the Victorian Employee Relations Commission, an (sic) which are recorded in Commissioner Stewein's instrument dated 7th February 1996. The duties you have agreed to perform have all been satisfactorily covered without any additions. Both your treating doctor and the company doctor have certified you fit for normal duties. Olex Cables recognizes that it has met all of its obligations towards you. Olex Cables now seriously believes that if you persist in absenting yourself from work with no valid reason, Olex will be left with no option other than to terminate your employment. We ask you to seriously consider this and if you have not reported for work by 8.30am on Monday 20th May 1996, then we shall have no other option than the one outlined above." By a letter dated 16 May 1996 (Exhibit A7) the applicant's solicitors responded confirming that the applicant wished to return to work but, nevertheless, felt that the position description did not accord with the agreement reached on 7 February 1996 and that the applicant was being asked to perform duties he did not have skills to perform and which he understood he would not be asked to learn. Telephone discussions and further correspondence did not really advance the resolution of the dispute. What is clear is that each party maintained their respective position and, other than making a minor amendment to the position description by indicating that where the applicant was required to physically relocate test samples he would do so by means of a forklift, the respondent set a deadline of 8.30am on 27 May 1996 for the applicant to return to work. By a letter dated 27 May 1996 (Exhibit A11) Otter terminated the applicant's employment on the following basis: "Further to our telephone conversation today (27/05/96) I now confirm the following: A) You have not attended for work on Monday 27 May 1996, as requested re correspondence forwarded to you and your legal advisors by Olex Cables. B) You verbal refusal to attend work on the 27th May 1996 and perform duties consistent with your obligations as recorded in Commissioner Stewein (sic) instrument dated 7th February 1996. It is for these reasons that Olex Cables terminates your employment effective 5.30pm Monday 27 May 1996. Please find enclosed a cheque and statement detailing all monies owed to you by Olex Cables." Much was said about whether or not the applicant in fact already had the skills to perform the tasks referred to in the position description for a position the respondent said it had created especially for the applicant. I conclude from this lastmentioned assertion that the position was essentially quite different from that previously occupied by the applicant. There was no evidence given by the respondent's witness to show that when the position was offered the respondent took any steps to show the applicant and his advisors what area or areas of work performed in the new position were similar to the work performed by the applicant before he went on sick leave. In my view poor communication was a significant factor contributing to the impasse that occurred. This observation is borne out by Otter's evidence that even though he had a part in putting together the position description and he was the person who terminated the applicant's employment, at the relevant time he had no knowledge of the existence of at least one position for a full time forklift driver in the stores area. From 1994, as I have already noted, it was the policy of the respondent to phase out forklift driving positions and develop enterprise flexibility with employees gaining forklift driving licences if they elected to acquire new skills. Whatever policy the respondent may have had in place the agreement made on 7 February 1996, which was the subject of an order of the Commission, clearly required the respondent if it was acting in good faith to offer the applicant the permanent forklift driving position it then had available in its stores area, which position remained available until December 1996. Evidence was given by the respondent's witnesses and two former employees to the effect that as a result of its restructuring a number of the permanent forklift drivers opted for redundancy packages rather than re-skilling. In his submission to the Court the respondent's counsel asserted that the applicant had refused the new position offered to him, which Mr Turner conceded did require some additional training, because he was then really seeking a redundancy payment. There is simply no evidence to suggest that this was the case because there was no discussion in May 1996 concerning the current availability of the forklift driving job in stores. At that time it appears from Otter's evidence that the respondent's representative had not made any relevant inquiries or endeavoured at all to establish whether there was a full time forklift driving position available because the respondent felt the applicant should perform the duties he was directed by it to perform. The applicant and his representatives in May 1996 made no mention of the full time position and this is probably because it was not clear until the hearing of this matter that the forklift driving position had been available throughout the period between November 1995 and December 1996. The evidence of the respondent's witnesses indicates that another position was available either in late July or during August 1995 and that position was filled by an employee, who was required to obtain a forklift drivers licence. Even if the applicant had been aware of the existence of the outstanding position in stores in May 1996, there is no evidence to indicate that at that time either the respondent or the applicant were also aware that the forklift driving position would be abolished or amalgamated with another position in December 1996. Taking into account all the foregoing matters, I do not accept that the applicant's conduct in refusing the new position in May 1996 can be explained simply by saying that he was then pursuing a redundancy package, which after nineteen years of service would be a substantial one. On the evidence of Jacobs such a package was worth more than $45,000 for this period of service and in all probability the value of the potential redundancy package influenced the respondent's conduct. In my view, the evidence supports a finding that the applicant was attempting to enforce the agreement entered into in February 1996 and the respondent chose to interpret that agreement and the order of the Commission in a way which suited its policy objective of phasing out forklift driving positions, rather than comply with the spirit and objective of the agreement reached. On any reading of the document given to the applicant, the position of Development Test Assistant gives primacy to testing duties over any forklift driving duties and requires reskilling. The respondent carries the burden of establishing on the balance of probabilities that the termination was justified. It has not discharged that burden of proof because the reasons given for terminating the applicant's employment and, in particular, item B) in its letter of termination, have not been substantiated. The applicant did not refuse to return to work to perform duties consistent with those contained in the February 1996 agreement and the order of the Commission. In fact, the behaviour of the respondent is consistent with an attempt by it to avoid the agreement it reached. Accordingly, I find that the termination was unlawful and in contravention of section 170DE(1) of the Act. REMEDY Both parties opposed any order for reinstatement being made. This was so even though the evidence indicates that the applicant has remained unemployed and in receipt of unemployment benefits since the termination. Given the submissions made to the Court on reinstatement I formally find that reinstatement is impracticable, noting further that the respondent now no longer employs full time permanent forklift drivers. This coupled with the applicant's disinclination to acquire new skills on the job are matters which militate against reinstatement. In August 1996 Cwietkowski, who was a full time forklift driver employed by the respondent since 1988, had the option of learning new skills or taking a redundancy package. He chose the latter option. Bekcioglu, another former employee, who commenced his employment in 1989, was a full time test operator with some forklift driving duties when in 1996 he too opted for a redundancy package, rather than move to another section and work shift work other than the day shift work he had performed for the previous six years. I had some difficulty comprehending why the respondent did not give the applicant the same choices it gave its other full time long-standing employees where they declined a skills enhancement option during the restructuring process. On the question of compensation, Mr Turner urged the Court to take into account the applicant's failure to accept the new position. An offer of suitable alternative employment is, as a general rule, a relevant circumstance when considering whether there should be any or any reduced payment of compensation. However, this circumstance in this case must be weighed against the circumstance that the other long-term employees, who were not on sick leave, were offered a choice denied to the applicant. A further circumstance relevant to the calculation of compensation is the existence of an agreement to give the applicant a full time permanent forklift driving position which in the six months subsequent to the termination was available even though it subsequently disappeared by reason of the restructuring process. The abovementioned considerations lead me to the conclusion that first, the payment of compensation in this case is appropriate and, secondly, such payment should compensate the applicant for his loss, which represents no less than the six months remuneration he would have received in the position in stores as a forklift driver but for the unlawful termination of his employment. Assuming that the respondent's policy of phasing out the full time forklift driving positions would have inevitably caught up with the forklift driver position in stores, the applicant also lost the opportunity to make the same election as the other long-term employees to either reskill or take a redundancy package. The ceiling applicable to the payment of compensation in accordance with the Act means that in this proceeding the loss of the opportunity afforded to the other employees adds nothing to the amount payable to the applicant. Notwithstanding this outcome, I am satisfied that the loss of such an opportunity is a compensable item in the right circumstances. On termination the applicant received four weeks' compensation in lieu of notice in the sum of $2,255.60 gross. Accordingly, for the remaining twenty-two weeks, the gross loss was $12,405.80 and I propose to make an order for payment of this sum less any amounts payable and paid to the Commissioner of Taxation. COSTS CLAIMS As I have already noted the respondent was unsuccessful in establishing that the principal claim was settled on 16 September 1996 and any terms of settlement entered into on that date were satisfied. An examination of my Reasons for Decision handed down on 2 May 1997 and the transcript indicate that on the first return date of the respondent's notice of motion filed on 14 March 1997 the respondent initially sought the following order: "1. That, pursuant to Rule 2 of Order 29 of the Industrial Relations Court Rules, the question of whether, by operation of an agreement made or or (sic) about 16 September 1996, the Applicant should be ordered to discontinue this proceeding (and the terms (including costs) upon which such a discontinuance be ordered) be tried separately from any other question in the proceeding and prior to trial, on a date to be fixed;" On the first return date it was noted that the Court did not have the power to order the applicant to discontinue his proceeding irrespective of any finding that the claim was the subject of a binding settlement agreement on 16 September 1996. On the first return date it was eventually agreed that the preliminary question would in fact be confined to a determination of whether the proceeding brought by the applicant was settled. Had I found this to be so then the appropriate order to make would have been to dismiss the reinstated claim. Without revisiting here all of the matters canvassed in my Reasons for Decision, it is appropriate to note that there were a number of issues ventilated at the hearing of the preliminary question. One was whether on 16 September 1996 the applicant's barrister had authority to first settle the claim and, secondly, to compromise it in the terms incorporated in written terms of settlement signed by counsel representing each party. At hearing it was not necessary to pursue the issue of whether the applicant's former counsel, Mr Willcocks, had actual authority to settle for two reasons. One was that Ms Doyle on behalf of the applicant conceded that at the relevant time Mr Willcocks had ostensible authority. Nonetheless, she reserved the applicant's position on the question of counsel's actual authority because the applicant denied authorising Mr Willcocks to accept the offer of settlement put to him by the respondent. The second is that there was in any event a dispute concerning the interpretation of the terms of settlement entered into and whether the respondent had met its obligations within any time limits contained in those terms. If, as I ultimately found, the respondent failed to satisfy the settlement within the time limits provided for, the applicant was entitled to proceed to reject the attempt to make the payment well out of time and seek to have his claim dealt with on its merits. Apart from arguing at length about the proper interpretation of the written terms of settlement, the respondent also advanced an argument that the consent order striking out the proceeding with a right of reinstatement made by Judicial Registrar Ryan perfected the compromise entered into by the parties' counsel. My Reasons for Decision set out the bases for rejecting that argument, noting also my view that such an argument was, in this case, misconceived. It was common ground that section 170EHA of the Act applied to this proceeding. That section provides as follows: "170EHA (1) If, in relation to a matter referred to the Court under section 170ED, the Court is satisfied that a party to the proceeding has caused any other party to the proceeding to incur costs because of an unreasonable act or omission of the first-mentioned party in connection with the conduct of the proceeding following the referral, the Court may order the first-mentioned party to pay all or part of the costs incurred by that party. (2) This power is in addition to, and not in derogation from, any other power of the Court to award costs. (3) In this section: "costs" includes all legal and professional costs and disbursements and expenses of witnesses." In respect to the costs claims both parties relied on the observations of Justice Marshall in his decision in Fenech v Perfect Health Medical Centres Pty Ltd (unreported, Industrial Relations Court of Australia, Marshall J, 2 May 1996) where he found: "The prospects of success of the application for interlocutory relief were virtually nil and on that basis it cannot be said that this was a matter where a claim which had some merit was simply found unmeritorious on the better view of the matter. Therefore, in my view, it is appropriate to order costs pursuant to section 170EHA of the Act in favour of the applicant." The respondent in defending the costs application made against it argued for a narrow interpretation of the application of section 170EHA suggesting that "an unreasonable act or omission" was limited to cases where, for instance, as in Fenech's case there is a finding that the Court does not have jurisdiction to deal with the matters a party seeks to have heard before it. In my view the abovementioned interpretation of the ambit of section 170EHA and the purport of His Honour's decision in Fenech's case is unsustainable if it is intended to confine the award of costs only to an assessment of the prospects of the success of an application. Lack of jurisdiction in the Court to proceed to hear an application made to it or lack of merit in the claim made may provide prima facie cases for arguing that the making of an application was an unreasonable act. These matters may also provide bases under section 347 of the Act for arguing that a proceeding was initiated without reasonable cause because it had no substantial prospect of success. However, this is not to say that the interpretation of what is an unreasonable act is the same as the judicial interpretation of the phrase "without reasonable cause" as contained in section 347 of the Act. Costs incurred because of an unreasonable omission or an omission in connection with the conduct of a proceeding are unlikely to be costs incurred by reason of an application made which, for example, fails to establish the jurisdiction of the Court to deal with that application. It follows that section 170EHA covers conduct beyond simply unmeritorious applications and deals with a wide range of conduct which is objectively unreasonable and which causes a party to incur costs. Whilst I expressed some concerns in my Reasons for Decision about the respondent's conduct following the alleged settlement and its general approach, what I have to decide here is whether its conduct in filing its notice of motion and seeking to uphold the alleged settlement was unreasonable. As a general rule, in my view where the act complained of requires the Court to interpret, as was so in this case, widely drawn written terms of settlement, a party should not by reason of the provisions of section 170EHA of the Act be precluded from putting its argument to the Court. In other words, I am not satisfied that the failure to successfully argue for a particular interpretation of the contents of the written document is sufficient to establish an unreasonable act on the part of the respondent. Accordingly, I do not accede to the applicant's claim for costs pursuant to section 170EHA of the Act. With respect to the costs claim made by the respondent I am not satisfied that that claim was properly or seriously made to the Court. In any event that claim is also rejected. MINUTES OF ORDERS THE COURT DECLARES THAT: 1. On 27 May 1996 the respondent terminated the employment of Malcolm Denzil Hogan in contravention of the provisions of the Workplace Relations Act 1996. AND THE COURT ORDERS THAT within 21 days of the date of making these orders: 2. The respondent pay to the applicant the sum of $12,405.80, less any amount payable to the Commissioner of Taxation pursuant to the Income Tax Assessment Act 1936 and actually paid. 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 eighteen (18) pages are a true copy of the reasons for judgment of Judicial Registrar Millane. Associate: Dated: 6 August 1997 Solicitors for the Applicant: John Preat Counsel for the Applicant: Ms R. Doyle Solicitors for the Respondent: Freehill Hollingdale & Page Counsel for the Respondent: Mr F. Turner Date of hearing: 3 April, 24 June and 28 July 1997 Date of judgment: 6 August 1997