Industrial Relations Commission of New South Wales in Court Session CITATION : Sterling Software (Pacific) Pty Ltd v Chippington [2001] NSWIRComm 214 APPELLANTS: Sterling Software (Pacific) Pty Ltd PARTIES : Computer Associates Pty Ltd RESPONDENT: Raymond John Chippington FILE NUMBER: IRC 2277 of 2001 CORAM: Wright J President; Walton J Vice-President; Boland J CATCHWORDS : Appeal - Unfair contract - Application for leave to appeal and appeal - Alleged failure of trial judge to take into account offer of alternative employment - Alleged failure to deal appropriately with mitigation of damages - Trial judge's decision turned on the particular facts of the case - Particular approach adopted by trial judge - Trial judge's approach open to him as were his conclusions - No issue of principle - Application did not provide vehicle for consideration of issues of principle said to be raised - Leave to appeal refused - Indemnity costs order sought by respondent refused - Costs on usual basis. LEGISLATION CITED : Industrial Relations Act 1996 s 106 CASES CITED : Chippington v Sterling Software (Pacific) Pty Ltd [2001] NSWIRComm 17 Chippington v Sterling Software (Pacific) Pty Ltd (No. 2) [2001] NSWIRComm 47 HEARING DATES: 08/31/2001 EXTEMPORE JUDGMENT DATE : 08/31/2001 APPELLANTS: The Hon J W Shaw QC and Mr J R Clarke of counsel Clayton Utz, Lawyers (Ms Fiona Bigelli) LEGAL REPRESENTATIVES: RESPONDENT: Mr S Crawshaw SC and Ms P F Lowson of counsel Spooner & Hall, Solicitors (Mr Damon Hall) JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION FULL BENCH CORAM: WRIGHT J, President WALTON J, Vice-President BOLAND J Friday, 31 August 2001 Matter No IRC 2277 of 2001 STERLING SOFTWARE (PACIFIC) PTY LIMITED AND ANOTHER v RAYMOND JOHN CHIPPINGTON Application for leave to appeal and appeal against decisions of Justice Maidment given on 7 March 2001 and Justice Schmidt given on 22 March 2001 in Matter No IRC 2300 of 2000 JUDGMENT OF THE COURT (Extempore) [2001] NSWIRComm 214 1 This is an application for leave to appeal and, subject to leave being granted, an appeal by Sterling Software (Pacific) Pty Ltd and Computer Associates Pty Ltd (collectively referred to as the appellant) against the judgment of Maidment J in Chippington v Sterling Software (Pacific) Pty Ltd [2001] NSWIRComm 17, given on 7 March 2001, in which his Honour made orders in favour of the respondent, Raymond John Chippington, who had brought proceedings against the appellant pursuant to s 106 of the Industrial Relations Act 1996. 2 The application for leave to appeal and appeal is also expressed to be against the judgment and orders as to costs of Schmidt J given on 22 March 2001 in Chippington v Sterling Software (Pacific) Pty Ltd (No. 2) [2001] NSWIRComm 47, subsequent to delivery of the initial judgment. The application in that regard is entirely consequential upon success in relation to the original judgment as her Honour completed the proceedings at first instance because of the unavailability of Maidment J. It is therefore appropriate to deal with the matter at least initially in terms of the judgment of Maidment J and the relief sought as to it. 3 The appellant has argued its case for leave to appeal and its substantive appeal, having been permitted to do so in an overall way, by reference to the following subject matters: (1) the trial judge's failure to take into account an offer of what is said to be suitable alternative employment by the appellant; and (2) the failure by his Honour to take into account principles as to mitigation of damages in the assessment of the verdict in favour of the respondent. 4 It was submitted that these issues, in the context of his Honour's judgment and of the appeal, raise matters of considerable importance and principle and create an important precedent in terms of the Court's jurisprudence in actions brought under s 106 of the Industrial Relations Act . We do not agree. Although his Honour's judgment is characterised by economy and conciseness in expression and conclusion, his Honour's conclusions and reasons therefor are sufficiently clear as is the circumstance that his Honour considered the matter was one to be determined on its own particular facts. 5 His Honour considered that the "critical issue" on the particular facts of the case before him was - "… whether or not the level of severance/redundancy payment was unfair in the circumstances of this case" and thus whether - "the contract of employment and collateral arrangements were unfair to the extent that they failed to include, for the purposes of the calculation of termination pay of 24.67 weeks, an amount reflective of the salary package which Mr Chippington had received in his pre-retrenchment position." 6 This occurred: (a) in circumstances where the offer or proposal made by the appellant was that the severance payment was to be limited in calculation to exclude reference to commission payments; (b) in the context of an acceptance by the employer that it was appropriate for the respondent to be given the option of either employment with Computer Associates Pty Ltd, or the taking of a severance payment; (c) where there was evidence in the following terms (from Mr Mitchell, the Strategic Accounts Group General Manager of the second appellant, which had acquired the first appellant) as to employment with that company as the alternative to severance pay: Ray Chippington: "And what is the case if I don't want to take on a position at Computer Associates?" Gary Mitchell: "If you don't want to take on a position at Computer Associates you'll be paid out in accordance with a redundancy plan. Computer Associates is only interested in taking on those employees who actually want to work for it."; and (d) where, as to the subject of mitigation, his Honour held: as those circumstances do not impact on issues as I perceive them I need not expand upon that matter. 7 We consider that the decision at first instance turned upon its own facts and circumstances. His Honour's judgment did not erect any general statement of principle as to how s 106 of the Industrial Relations Act should operate when an employer offers an employee an alternative position where his or her position becomes redundant, but rather requires an assessment of whether the combination of arrangements offered to the employee in this case was relevantly unfair, particularly having regard to the redundancy payment offered in lieu of alternative employment. 8 In any event, we do not consider the present application for leave to appeal provides an appropriate vehicle to consider the issues or the principles referred to by Mr Shaw of Queen's Counsel for the appellant. It is also to be observed that the amount in issue in the appeal is relatively small for matters of this kind. We consider the findings made by his Honour as to the matters identified earlier in terms of the assessment his Honour made were matters which were reasonably open to him. Leave to appeal should therefore be refused. 9 In those circumstances the appropriate orders in disposition of these proceedings are: 1. Leave to appeal refused; 2. Appeal dismissed. [Parties addressed on costs] 10 We note in relation to the application made by the respondent for the costs of the appeal on an indemnity basis that detailed submissions have been made by the respective counsel. It is not intended to set out or summarise those submissions here as they are recorded fully in transcript. 11 We propose to refuse the application for indemnity costs, having heard the submissions made in the detailed way which has occurred. The Full Bench therefore makes the following additional orders: 3. The appellants pay the respondent's costs of the appeal in an amount as agreed or, in default of agreement, as assessed. 4. The stay granted on 3 April 2001 of the orders made by Schmidt J on 16 March 2001, is lifted. __________________ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.