Industrial Relations Commission of New South Wales in Court Session CITATION : Sawyer v Cutler-Hammer Pty Ltd. [2002] NSWIRComm 233 revised - 11/09/2002 APPLICANT: Gary Sawyer PARTIES : RESPONDENT: Cutler-Hammer Pty Ltd FILE NUMBER: IRC 7950 of of 2001 CORAM: Walton J Vice-President; Haylen J; Staunton J Industrial Relations Act 1996 - s 106 application - finding of redundancy rejected - orders made for payment in lieu of reasonable notice - application for leave to appeal - significance of corporate restructure under way but not completed - findings at first instance open on evidence - no error demonstrated - submissions on appeal as to alternative manner of calculating compensation not put below - appellant bound by its conduct of proceedings below - relevance of failure to put submission below for application for leave to appeal - no other issue of general importance raised - concept of "redundancy" well settled - leave to appeal refused. Industrial Relations Act 1996 - s 187 - application for leave to appeal - submissions on appeal as to alternative manner of calculating compensation not put below - appellant bound by its conduct of proceedings below - failure to put submission below relevant to question of leave to appeal - leave to appeal refused. CATCHWORDS : HEARING DATES: 09/03/2002; 09/04/2002 EXTEMPORE JUDGMENT DATE : 09/04/2002 APPELLANT: Mr J V Murphy of counsel SOLICITORS: Fiona Inverarity PricewaterhouseCoopers Legal LEGAL REPRESENTATIVES: RESPONDENT: Mr J J Fernon of counsel SOLICITORS: Ms Jackie Ntatsopoulos Baker & McKenzie JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: WALTON J, Vice-President HAYLEN J STAUNTON J 4 September 2002 Matter No. IRC 7950 of 2001 GARY SAWYER v CUTLER-HAMMER PTY LTD Application for leave to appeal and appeal against a decision of Justice Marks given on 9.11.01 in Matter No IRC00/1267 JUDGMENT OF THE COURT Ex Tempore [2002] NSWIRComm 233 1 Having heard the appellant in full on both questions of leave to appeal and the merit of the appeal if leave be granted, we are satisfied that the primary question which arises from the judgment at first instance revolves around the question of whether or not the appellant was terminated because of redundancy. 2 The appellant's case appears to turn upon a plan by the respondent to introduce a new position of plant manager and the engagement of consultants together with the preparation of a number of organisational charts and promotability assessments. In many respects the appellant's case relies upon inferences drawn from the evidence that in fact the respondent's planned re-organisation was, in substance, given effect to by the termination of the appellant. 3 Justice Marks found that there was a restructuring process underway in the operation of the respondent but it had not yet been completed. Importantly, his Honour found that the relevantly operative mind of the respondent company, Mr Trewin, was not motivated by a desire to avoid the payment of redundancy benefits to the appellant in coming to the decision to terminate the appellant's employment. His Honour decided that the appellant was not redundant because of the re-organisation of the respondent and ordered compensation largely by consideration of what was appropriate notice for an employee of his age, employment status and length of service. It is not to the point that this Bench either together or individually may have come to a different view on the question of whether or not there was a redundancy: the fact that minds may differ quite legitimately is one of the hallmarks of the exercise of the very special jurisdiction conferred upon the Court by s 106 of the Act. What is clear is that it was reasonably open on all of the evidence for his Honour to conclude that the termination of the appellant was not, either by design or as a matter of objective fact, brought about as a result of redundancy. The fundamental point of this appeal therefore fails. 4 Counsel for the appellant argued that an alternative submission was put to his Honour which his Honour effectively failed to deal with. It was submitted that his Honour was invited to treat the termination of the appellant as substantially resulting from redundancy caused by re-organisation even if that was not a technically correct description of what occurred. A consideration of the summons for relief, the written submissions placed before his Honour and the grounds of appeal all strongly suggest that a submission in that form was not put before his Honour. The respondent strongly contests that any such submission was made below. On balance, we have come to the same view. It is well established that an appellant is bound by its conduct of the proceedings at first instance. That principle applies with real force to the present circumstances. Having failed to make that submission in clear and unmistakeable terms before his Honour, it is not open for the appellant to now attempt, effectively for the first time and on appeal, to mount an alternative case for compensation. 5 It is equally clear that the agitation of issues on appeal that were not raised at first instance will be a factor against the grant of leave to appeal. We would add it was argued for the appellant that the appeal raises a question of importance, namely, whether or not the concept of redundancy should be approached on a narrow or technical basis arising only at the completion of a restructure. We do not consider that his Honour approached the question raised by the appellant at first instance in that manner. Further, we consider that the meaning of the concept of redundancy is well established. More importantly, the question requiring resolution at first instance was whether the conduct of the respondent in relation to the termination of the appellant and having regard to the question of redundancy, was unfair. 6 It is in those circumstances that we determine that leave to appeal be refused. 7 We order: 1. Leave to appeal is refused. 2. The Appeal is dismissed. (The parties were heard separately on the question of costs). 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