Industrial Relations Commission of New South Wales in Court Session CITATION : Attwell v Maxx Implementation Pty Ltd [2003] NSWIRComm 52 APPLICANT David Attwell PARTIES : RESPONDENT Maxx Implementation Pty Limited FILE NUMBER: IRC3384 of 2000 CORAM: Peterson J CATCHWORDS : Unfair contract - employment as consultant - circumstances surrounding end of employment relationship - whether abandonment of employment - employment discontinued without notice - question of redundancy - contract varied - orders made LEGISLATION CITED : Industrial Relations Act 1996 s106 CASES CITED : Reich v Client Services Professionals of Australia Pty Limited (Administrator Appointed) (2000) 49 IR 69 at 83 Westfield Holdings v Adams (2001) 114 IR 241 HEARING DATES: 03/25/2002; 03/26/2002; 06/28/2002; 07/12/2002; 09/05/2002 DATE OF JUDGMENT: 03/10/2003 APPLICANT Mr A T Britt of counsel SOLICITOR W H Parsons & Associates SYDNEY. LEGAL REPRESENTATIVES: RESPONDENT Mr R Alkadamani of counsel SOLICITOR Thomas and Company SYDNEY. JUDGMENT: - 23 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: PETERSON J 10 MARCH 2003 Matter No. IRC3384 of 2000 DAVID ATTWELL v MAXX IMPLEMENTATION PTY LIMITED Application under s106 of the Industrial Relations Act 1996 JUDGMENT 1 The applicant, David Attwell, was first employed by the respondent, Maxx Implementation Pty Limited ('Maxx'), on 12 January 1998 to perform tasks associated with the implementation of change in the operations of clients of Maxx. The type of change involved was essentially one of the approach of employees to the alteration of their functions to produce greater efficiencies. 2 In March 2000 certain events led to the discontinuance of the relationship and, in due course, to these proceedings. The termination of the relationship of the parties occurred in circumstances where Maxx contended that the applicant abandoned his employment (nominating 9 March 2000 as the relevant date) and the applicant contending that his employment was discontinued through no wish of his own, by Maxx without notice. 3 The applicant has brought a summons for relief under s106 of the Industrial Relations Act 1996 ('the Act') for appropriate declaratory relief and now presses for an order for the payment of money in the sum of six months salary at his salary package rate on account of payment in lieu of notice, plus 8.75 weeks at the same rate on account of alleged redundancy, a small amount of unpaid annual leave ($165.00) and costs. 4 The determination of the matter obviously will depend to a considerable degree on the findings of fact and the legal consequences which flow from those facts. The applicant gave evidence in his own case; Mr Gerhard (Gerry) Ludwig, the principal of Maxx and Mr Lindsay Boyd, the Operations Manager of Maxx, gave evidence in the respondent's case. The evidence of all three witnesses contained inconsistencies and features which cast doubt upon the accuracy of their evidence. For example, Mr Attwell received an e-mail message on 18 March 2000 indicating that Maxx viewed his conduct as having amounted to an abandonment of employment. He purchased a lawn mowing business on 23 March 2000. He asserted that he had made more than 100 applications for employment, without getting an interview. How this was possible was not explored although I have great difficulty accepting its accuracy. Mr Ludwig, who I must say was of lesser concern in this respect, gave evidence that he did not tell Mr Boyd of the applicant's e-mails to him between 15 March and 18 March 2000. Mr Boyd asserted that Mr Ludwig had told him of the e-mails and indeed on 18 March he wrote the "termination" e-mail to the applicant asserting he had read them. In evidence, however, he said that he had not read them at the time, they had been explained to him by Mr Ludwig. 5 While attacks on credit were made by both sides, I was left with the clear impression that both Mr Attwell and Mr Boyd were in their evidence prone to improving their memories to fit their perceived needs of the case. I do not, however, reject the evidence of either of them in their entirety. It seems to me that, upon an analysis of the evidence, one can glean a reasonably accurate picture of the relevant events. 6 The applicant had 23 years experience in the postal industry, for seven years of which he was employed as the Manager, Change Management Projects within the New Zealand postal industry. 7 In or about early December 1997 the applicant had a conversation with Mr Ludwig about potential employment. The applicant asserted that the contact involved both a meeting and a telephone conversation, Mr Ludwig recalling, somewhat surprisingly, that there was no physical meeting. In any event, an offer of employment was made to the applicant to start on 12 January 1998 at a salary level of $95,000 per annum plus 7.5% superannuation and the possibility of a bonus. The terms were reduced to writing in a service agreement which described the duties of the employee as: Consultant and such other additional or other duties, functions and responsibilities as the Company and the Employee shall from time to time agree. 8 This provision and in particular that part concerning the parties agreeing to other duties, assumed some significance at or near the point of separation of the parties, Mr Attwell asserting that the qualification in that provision entitled him to reject certain work that might be offered to him. I will return to that subject later. 9 Clause 2.2 of the Agreement provided: The Employee will report to and be responsible to Ludwig as the Managing Director of the Company. 10 The Service Agreement also provided relevantly: 2.7 The Employee will: (a) obey all lawful directions of the Company; and (b) provide the Company with information and reports: (i) as to the affairs of the Company as it may request from time to time; and (ii) generally, so as to keep the Company fully informed of all material developments in or relevant to the Company's affairs within the scope of his Duties 11 While the Agreement described the functions, and therefore presumably the position, as "Consultant" it was obviously within the scope of the alternative provision in that description for the parties to agree to some other appointment. There is no evidence of any particular agreement during the course of employment to such an alternative position although the applicant sought to identify his position as "Project Manager" of the two projects upon which he worked. The respondent's evidence was to the effect that the consultants on a particular project were generally of equivalent status although one consultant would be described as the "nominated consultant", which meant that the person so described was responsible to coordinate the project. Nevertheless, the applicant was referred to from time to time as the "Project Manager", including in the final letter from Mr Boyd to the applicant claiming that he had terminated his service by abandonment of employment. On the other hand, the applicant concurred, in his affidavit in reply, with a reference to him by Mr Boyd as the "nominated consultant" by deposing: ". . . . I agree and state that I was "the nominated consultant" on the project". 12 It is also material that the person coordinating a particular project might, on a different project, not be the coordinator and might be subject to the "supervision" on the project of another who had been supervised by that person on a previous project; that is, the roles were transposed. Another relevant fact is that the salary levels of the consultants did not conform to any particular standard, some of those claimed by the applicant to be under his supervision actually receiving a salary at a higher level than the applicant. 13 While it is presumably relevant to the assessment of any notice period that might be applicable to the applicant, should he be successful in these proceedings, I consider his contention that he was a "Project Manager" to be somewhat exaggerated. The team involved on the major project upon which he worked, the Australia Post Project, comprised himself and one other permanent person together with two other consultants who worked only casually or part-time on the project. It is clear that the applicant was in fact engaged as the person in the senior position on this project and had been for a period longer than Mr Ludwig could recall any other such person operating in that way. He is entitled to a recognition, in these circumstances, for his position as the senior consultant on his projects for a period of more than 12 months. This does not, to my mind, place him in the middle or upper echelons of management. 14 The crucial part of the case concerns the circumstances of the coming to an end of the employment relationship. 15 Mr Attwell's practice was to regularly return to New Zealand for the weekend. He had programmed to do this on the weekend of the 11-12 March 2000. He had been working on the Australia Post Sydney Airport project for some months; the project was due to complete on Friday, 10 March 2000. 16 On or about 7 March 2000 Mr Attwell had a telephone conversation with Mr Boyd as follows: Mr Attwell: The project is due to complete on 10 March. Mr Boyd: I thought it had another 1 or 2 weeks to run. Mr Attwell: No, it (sic - is) due to complete on 10 March. I have completed the final reports and the completion documents, and will arrange for a final presentation with Terry Taylor on Tuesday 14 March. Mr Boyd: Go ahead and organise it that way. Mr Attwell: What are your plans for me after 10 March? Mr Boyd: Not too sure at present, maybe with Charlie on the mining job at Broken Hill. Mr Attwell: I will work on any project you need me on. 17 The final comment by Mr Attwell was amplified by him in evidence to mean "I will work on any project you need me on and I agree you need me on". 18 Mr Boyd had initially deposed in his affidavit sworn 18 February 2002 that he had no conversation with Mr Attwell on 10 March 2000, however, in his oral evidence he sought to correct that, indicating that he had realised the error in the affidavit, sought to have it corrected but overlooked its inclusion when he executed the affidavit. Evidence from his solicitor, John Hanna confirmed that position. I accept that evidence. Mr Boyd agreed that, while in Brisbane, he received a phone call from Mr Attwell on 10 March 2000 at approximately 7am Eastern Standard Time. He said that this conversation, consistently with those held with all "project managers" on Fridays, was about the project: there was nothing of significance that he recalled. 19 In these circumstances, I accept Mr Attwell's version of that conversation. 20 The applicant alleged that early in March (although his primary affidavit in the proceedings initially alleged it to be Friday, 10 March 2000) he had a conversation with Mr Boyd indicating that he would be in New Zealand, returning either Monday night or Tuesday morning to do the final presentation to Australia Post. This conversation was denied by Mr Boyd who also denied that he told the applicant that he wished him to work with Ken Sidebottom at Sydney North. This, he said, was the subject of a message he left to that effect on the applicant's voicemail. 21 The applicant had concerns that the job at Sydney North would be inappropriate for him. He discussed the matter with another consultant, Charlie Knight, and then caught his flight to New Zealand. 22 On Saturday, 11 March he received an e-mail from a member of the Sydney North project team, Jackie Mead, informing him that he was to report to her and Ken Sidebottom on Tuesday, 14 March and to do the night shift and that he could do the Saturday shift as well because he had had Monday off. 23 On Monday, 13 March he spoke to Ms Mead indicating that he wished to discuss his next position further with Mr Boyd. He telephoned Mr Boyd that day and advised him to the effect: I am not prepared to accept such a minor role and working with 2 people I have zero confidence in. My written Contract gives me the right to "accept the assignment if both parties agree" and that I do not agree on this minor role. Mr Boyd: I want you to work at ASPN and work for Ken Sidebottom and Jackie. Mr Attwell: I have received an e-mail and spoken to Jackie. I have told Jackie that I was not prepared to take up a junior role that was being offered and that I would discuss it further with you. I feel the role is a very unimportant and junior role, and the role of auditing shift managers meetings on the night shift was for the junior team to complete. And this is usually done by brand new staff. Greg Brennan, who was brand new in the role, has a starter role on the project and he did that role. Really I am not prepared to do that minor role with Ken at Sydney North. I feel the role is beneath my skills and abilities and you are pushing me into a role that would involve me having to use tools that Brian [Psychologist] was developing and that I and other team members have publicly voiced our very serious concerns about using those tools. I consider these tools to be unethical, and extremely dangerous to use and from advice I have received there is some question on the legality of the e-mail style that Brian is using and I find it personally offensive and in some cases it could be construed as defamatory and as a slur and I would be very reluctant to be party to such a shoddy tool which I find rude and completely unprofessional and extremely dangerous to use. I have zero faith in the methods and behavioural tools you are using in this project. It would impact on Maxx in a negative matter (sic - manner) and I do not wish to use the tool - I prefer to use the existing methods we have used for over 18 months and that you [Lindsay] are trying to push me into a role that I will object to and then you will do a 'Jacques' on me. You're doing a Jacques on me that is why you changed and gave me these tasks. Mr Boyd: I am not trying to do a Jacques on you. Mr Attwell: Why did you change your mind on the Coal Mine job? Mr Boyd: I am not trying to do a Jacques on you although it could look that way if you went to the Coal Mine job. You are backing me into a corner. Mr Attwell: It is not my intention to back you into a corner, but I have major reservations about working on the ASPM Project and the role outlined by yourself and working and reporting to Ken and Jackie and I feel that I am being pushed into a task that I object to and that you are pushing me around just to get me to quit. To date I have observed major faults with the ASMPM project and the way it is being completed with its time keeping and hours of work being completed and tasks being completed. I wish to be considered to work for alternative projects such as working with Charlie. Lindsay Boyd then hung up on me. 24 Mr Boyd's evidence in relation to this conversation rejected much of it. In some respects, he did not recall the conversation and in other respects he either recalled the language differently or disputed that it was used. His version of the conversation he deposed to in these terms: On Monday 13 March 2000 I was on assignment in Perth. At approximately 11 am Perth time, I called Attwell's home number in Auckland and had a conversation with Attwell to the following effect: Mr Boyd: Where are you? Mr Attwell: Home. Mr Boyd: Why aren't you on a plane if you have a meeting with Terry Taylor tomorrow? Mr Attwell: I have no intention of returning and working for you. Mr Boyd: Why did you not attend work on Friday? Mr Attwell: I did. Mr Boyd: You left the country at 11 a.m. Mr Attwell did not respond. Mr Boyd then said: Why did you not contact me for assignment on Friday or the weekend? Mr Attwell: I sent you an email on Friday and copied Gerry. Mr Boyd: I received no email from you on Friday or on the weekend. Mr Attwell: I tried to call you on Friday midnight when I got off the plane but there was no answer. Mr Boyd: There was no message on my mobile service. Mr Attwell: I called you at home. Mr Boyd: That's garbage, Dave. There was no telephone call. I was home Friday all afternoon and all night. My phone tracks and records all incoming traffic and there were no calls from you at all. Mr Attwell: I refuse the Post assignment at North Sydney as I will not work with Jackie or Ken. Mr Boyd: Why is this? Mr Attwell: The project is a failure. Mr Boyd: It only started a few weeks ago. How can you come to such a conclusion? Mr Attwell: I have no confidence in those two and will not work with them and I refuse to go to Broken Hill. Mr Boyd: You have not been assigned to Broken Hill and won't be. Mr Attwell: I will not work any longer with the company's behavioural tools. Mr Boyd: They are a fundamental part of everything we do and you will be required to use them. Mr Attwell: I have had a gut full of Brian and I am going to sue him. I won't let the bastard get away with what he is doing to me. Mr Boyd: Brian is an educational resource that has worked well with everyone else in this company. You seem to be the odd one out. I was surprised at Attwell's comments concerning Brian Inniswill because of the comments he had previously made in his weekly reports which indicated to me that he had found Inniswill's training beneficial. At this point, Attwell began to shout. Much of what he said was incomprehensible to me, but I recall that he repeatedly said words to the effect: "You're doing a Jacques and I am the victim". After a period of minutes, I interrupted him, saying words to the effect: "Are you completely there?" After a period of silence, Attwell began to shout again. I then said words to the effect: "You are incomprehensible. If you don't stop this tirade at the count of three, I will hang up. Attwell continued to shout. I counted aloud. "One . . . two . . . three." And then terminated the conversation. 25 Both Mr Boyd and Mr Attwell agreed that there was a further conversation between them shortly afterwards. Having regard to the content of Mr Boyd's version and Mr Attwell's comments in cross-examination in relation to it, I think Mr Boyd's version is that upon which I should proceed subject to a consideration of the applicant's comments. Mr Boyd recalled the conversation to be as follows: Mr Boyd: Dave, firstly I apologise for losing my cool. I really want to resolve issues and move on. Mr Attwell: Yeah, okay. Mr Boyd: Let me recap what you have told me. You have told me that you will not work with Australia Post, you will not work with Jackie and Ken, you will not use company tools and processes, you are about to sue Brian and you will not work with me. Mr Attwell: That's right. Mr Boyd: Dave, I know you have got some family problems. Why don't you take a couple of weeks off without pay to sort yourself out? Mr Attwell: That's got nothing to do with it. I will not take any time off. Mr Boyd: You are taking time off. Can't you see that you are backing me into a corner with nowhere to go? Mr Attwell: That's your problem. Mr Boyd: No, Dave, it is not my problem. It's yours. I expect you to resume work immediately. Mr Attwell: I have no intention of returning to work with you. Mr Boyd: Then I will leave it up to you to get your act together and to advise me sooner rather than later. In the meantime, as you are not working you will not be paid. Mr Attwell: I don't respect you and I will only deal with Gerry. Mr Boyd: As you wish. Mr Attwell: Get him to call me. Mr Boyd: Dave, I have repeatedly told you that I will not become a middleman or be played off against someone else. Take control and responsibility for your own decisions and actions. Grow up. 26 Mr Attwell agreed with this version of the conversation down to the passage commencing "You are taking time off". He did observe that they discussed a cooling down period earlier in that sequence. He denied that he said "That's your problem", asserting that he said "I am not trying to back you into a corner I'm trying to negotiate us out". 27 Mr Attwell strongly denied saying "I have no intention of returning to work with you". He did recall Mr Boyd mentioning "Get your act together". He denied expressing a lack of respect for Mr Boyd and that he would only deal with Gerry (Ludwig). He said that he requested to up the level to Gerry Ludwig. He also contended that the final passage attributed to Mr Boyd related not to this conversation but an earlier one about Mr Inniswill. 28 Mr Attwell then took steps to contact Mr Ludwig by e-mail. On 13 March 2000 he sent an e-mail message which was as follows: Subject: Discussions with Lindsay Gerry please find attached the basics of my discussions with Lindsay please contact me as soon as suitable to your timetable I am at home in Auckland on 0064 9 4730991 Dave 29 Without setting out the long summary of the conversations, it may be said that it expresses concerns about the offer of work on the project Ken Sidebottom was working on. He expressed the view that the work was "grunt" work and that he was being brought in to be the "scapegoat for a project not being completed correctly". He expressed again difficulty in accepting the task of working for Ken Sidebottom. He said: You have employed me for the last two years in a Project Management role. As far as I'm aware I have been successful in that role. I anticipate continuing in that role providing Maxx has the Projects to complete. If Maxx does not have the future Projects to complete, or the role is changing from that of the current Project Manager to that other style that I am unable to participate in, then I believe that situation is currently covered in my Employment Contract. . . . . I have just been informed by Lindsay that he has offered me a position in Sydney, and if I do not accept it, the (sic) I should resign from Maxx. 30 He then made clear that he was not prepared to take the task as outlined to him "as it was only going to be a bad situation for both Maxx and myself. I still believe that I will be used as a 'scapegoat'". He also asserted that he was not prepared to take two weeks off without pay and requested a face to face meeting as soon as possible with Mr Ludwig. 31 At 8.31am on Wednesday, 15 March 2000 the applicant again e-mailed Mr Ludwig in these terms: Gerry I am trying to contact you on your mobile I would like to discuss the current situation with you please contact me either on my mobile on 0412340666 or at home on 00116494730991 as discussed with Lindsay I am not prepared to accept two weeks off work without pay please return my call Dave Attwell. 32 At 1.27pm on Wednesday, 15 March he again e-mailed Mr Ludwig in these terms: Gerry I have spoken with Lindsay on Monday He informed me that I was to take 2 weeks leave without pay as I was not prepared to work for Jackie and Ken at SNLF I informed him that I was not prepared to accept that decision, that I was not going to accept any time off without pay I requested and he agreed that he would E-mail (to NZ) a copy of his decision to date I have not received any e-mail from either him, yourself, or Catherine on this matter I spoke with Lindsay today and he informed me that he "has not got around to it" I have left messages both with Lindsay and on your cell phone that I require to discuss the matter with you could you please contact me at your earliest convenience Dave. 33 These e-mails were not responded to by Mr Ludwig. 34 As I have earlier noted the applicant's contract provided that he would report to and be responsible to the Managing Director. Mr Ludwig explained this in cross-examination as setting out "the legal relationship between the applicant and the respondent, not the operational responsibility". He was asked: Q. And Sir when there is a conflict between the legal responsibility and the operational responsibility who determines what overrides? A. I would be the final arbitrator. 35 Mr Ludwig explained his determination not to become involved in response to the applicant's approaches this way, referring to the e-mail of 13 March 2000 from the applicant to him: Q. When you say it is a summation of events, how did you determine that? A. It came about more in the manner to do - the manner David deals with conflict within our organisation. I just saw that as another form of normal behaviour for him, in as much as he goes through the correct channels when he gets stuff and when he can't get it from the correct channels he rings me up and places me in an invidious position, which fundamentally means I have to overrule Lindsay Boyd, and I'm not prepared to do that. I was certainly not prepared to do that in this case. . . . . Q. You received this e-mail and you were asked for your involvement and you declined to get involved: A. In the context I've just stipulated, that's correct, but not because I was unreasonable. I considered it to be a tactic and a strategy of his that I found very disagreeable and always have. . . . . Q. I asked you a simple question. You didn't return the applicant's calls? A. It isn't David's practice to leave messages for anybody other than on my mobile phone. Therefore, it is a demonstration of him once again wanted (sic - wanting) to go in a different direction to see the outcome he wanted. That's why I did not return his call. Q. When you say that outcome that Mr Attwell wanted, that outcome was to remain employed, wasn't it? A. I don't think so. Q. It was to remain employed in a role as a team leader with your organisation? A. At our meeting at the Sheraton I formed the opinion that Mr Attwell was leaving the company of his own accord and his own time of choosing. Q. The fact of the matter is he continued on until March and didn't leave the company until 10 March, did he? A. That I considered to be a timing issue that he had because he mentioned to me that his brother-in-law who was going into business, in the lawn mowing business, was thinking of taking a long holiday somewhere in March, so it is consistent with the conversation. Q. Are you saying there was a discussion at the Sheraton making a reference to a brother-in-law taking a long holiday in March? A. He told me as part of the discussion that is alluded to in my affidavit that he was thinking of going into partnership in a lawn mowing business run by his brother-in-law and that his brother-in-law wanted to take some time off in March and if he was going to join him that would be roughly about the time he would be thinking of doing that. Q. Can you point out to me in paragraph 8 where there is a reference to his brother-in-law - A. Well, there is no reference. Q. You are making this up? A. Of course I'm not making it up. Do you honestly think we had discussion about no more than those points you mentioned? We are talking about stuff that happened years ago. 36 As to the e-mail sent to him on 15 March by the applicant summarising his discussions with Mr Boyd, Mr Ludwig said that he would usually pass on copies of such to Mr Boyd. He said he never discussed the contents of this e-mail with Mr Boyd. On the other hand, the letter written to the applicant by Mr Boyd on 18 March summarises the history as including the fact that Mr Boyd had by then seen Mr Attwell's e-mail of 15 March to Mr Ludwig. In his oral evidence Mr Boyd denied that he had actually seen it at that date and to that extent claimed that his letter was inaccurate although he said that he had had the content of the e-mail explained to him by Mr Ludwig. Whatever may have been the accurate position in this context, it seems clear that Mr Boyd had a detailed understanding by 18 March of the content of the applicant's e-mail to Mr Ludwig of 13 March. 37 The e-mail of 13 March to my mind asserts four things of relevance: 1. That the applicant will not accept a position at Sydney North (the only position being offered to him); 2. that if there is no work available to him his contract makes provision for that eventuality, which I take to be termination on account of redundancy; 3. that he will not take two weeks leave without pay; and 4. that Mr Boyd had instructed him not to undertake the finalisation interview with Australia Post on Wednesday, 15 March in Sydney but that Mr Boyd would attend to it. 38 The question is whether these responses or indications constitute behaviour which the respondent was entitled to and accept as indicating a determination not to accept work which was being offered to him, assuming it to be offered within the terms of the contract. To this is to be added for consideration Mr Boyd's evidence of a further conversation when on Wednesday, 15 March Mr Attwell telephoned Mr Boyd asking: Where is my email? Mr Boyd: What email? Mr Attwell: The one telling me what you are doing with me. Mr Boyd: You make things up as you go along. Why have you not returned to work? Mr Attwell: I told you I have no intention of returning to work with you. 39 Mr Ludwig and Mr Boyd were, it seems to me, both affected in their consideration of these developments by an earlier conversation that each separately had, as they alleged, with the applicant at the Sheraton on the Park Hotel in Sydney in the latter half of 1999. 40 Mr Ludwig put the conversation this way: Mr Attwell: Am I going to get a pay rise? Mr Ludwig: No. Mr Attwell: Why? Mr Ludwig: The job you are doing isn't worth more than you are being paid. In addition, we have been quite benevolent to you in preceding periods. Mr Attwell: I am afraid I will have to review my position. Mr Ludwig: What does that mean? Mr Attwell: I have a number of options. One of them is that I get out of this consulting business because of the travel and because I have been at Australia Post too long. I am seriously thinking of investing in a lawn-mowing business with my brother-in-law and staying at home for a while. Mr Ludwig: Yes, I remember doing that once, taking on a lawn-mowing business and taking a couple of years sabbatical. It's amazing how fit you can become. As you are aware, the existing phases of the Australia Post contract are coming to an end. I guess you will be reassigned so it may be a very good idea at this time to consider your options and think of taking a break. When you have decided you have had enough, give us a call. 41 Mr Attwell accepted this as an accurate version of their conversation except for the second last sentence. 42 Mr Boyd put his conversation with Mr Attwell as having occurred on 26 October 1999, some time after Mr Attwell had returned from an absence on sick leave. The conversation went this way: Mr Boyd: It's good to see you back on deck and looking so well. Mr Attwell: I feel much better and have had a chance to review my situation. Mr Boyd: What do you mean? Mr Attwell: The pressure of work is not helping my health. I really appreciate the opportunity that you and Gerry have given me. In the not too distant future, I am going to take the both of you out to dinner and shake you by the hand in thanks. I am then going to say goodbye and get a lawn-mowing business so I can slow down and relax. Mr Boyd: When is that going to happen? Mr Attwell: I'm not sure but definitely not that far away. Mr Boyd: Well that's the work we do. You can't keep it up all the time. Mr Attwell: What about a bonus for the GPO project? Mr Boyd: Dave, we have given you sick leave on full pay well beyond any entitlement that you have had. I find it unbelievable that you would want more. Mr Attwell: Well, it's always worth a try. Mr Boyd: I want to leave you in no doubt that this was not a good project. I had to have Robin Bean come in and clean it up. Most elements of the system were not in place and behavioural change has once again not been implemented. This is consistent with an absence of time spent on the floor in front of people. Mr Attwell: Well you know that I was sick. Mr Boyd: Yes, I certainly make allowance for that, but you will need to significantly upgrade your behavioural understanding and knowledge so that you may apply interventions on the next project in a satisfactory manner and to the standard I require. To achieve this, Brian Inniswill will institute development plans with you and provide the required professional education input. 43 The applicant confirmed, through his affidavit in reply, having a conversation with Mr Boyd concerning his health but he denied saying any words to the effect "I was going to leave and get into a Lawn Mowing Business". In respect of this conversation between Messrs Attwell and Boyd, again I prefer Mr Boyd's recollection of it. Mr Attwell's recollection of these conversations I think was confused as between his conversations with Mr Ludwig and Mr Boyd. Mr Attwell contended in his affidavit in reply that he told Mr Ludwig in approximately September 1999 that he intended to get out of the consulting business in the next few years and possibly get into a lawn mowing business. Mr Ludwig denied the temporal qualification. The applicant also recalled the conversation ending this way: Mr Attwell: When I decide to chuck this in I will ring you and Lindsay up and take you to dinner with a bottle of the best red I can find and shake your hand as I leave. Mr Ludwig: That is the best way to go out. 44 Mr Ludwig's recollection of the conversation does not include that final exchange yet Mr Boyd's recalled conversation, recorded in par. 42 above, includes a similar component which is concurred in by Mr Attwell. 45 These conversations seem to have led both Mr Ludwig and Mr Boyd to then believe that the applicant was intending to resign. Although they did not know it at the time, that conclusion is supported by the fact that between the date of Mr Boyd's letter of 18 March 2000 expressing the conclusion that the employment relationship was ended due to the applicant's abandonment of it and 23 March 2000 the applicant had purchased a lawn mowing run in New Zealand. 46 What seems to me to have occurred in mid-March 2000 is that the applicant, acting upon a misconception of his contractual rights, adopted the view that he had a right to reject any assignment upon which he might be offered consultancy work, whether because of the nature of the work, its location or any other reason. His contract did not give that right; the work was defined, as earlier described, as "Consultant and such other additional or other duties, functions and responsibilities as the Company and the Employee shall from time to time agree". Here the work being offered to him, which he was refusing, was work as a consultant. The question arises whether this put him in breach of his contract. 47 The applicant's e-mails to Mr Ludwig in the week commencing 15 March 2000 make clear that he was not necessarily desirous of terminating the relationship. On the other hand, his indirect reference to the redundancy provisions in his contract raises some doubt about that. However, I consider a willingness to accept redundancy is to be distinguished from an attempt to engineer that result, which, on the evidence, I am not satisfied the applicant was doing. It is equally not possible to select some other contemporaneous point in time at which such a conclusion may have been justified. 48 In these circumstances, it was premature for Mr Boyd to form the conclusion that the applicant had abandoned his employment. It was certainly incorrect to conclude that he had done so from Thursday, 9 March, he having actually undertaken some work on Friday, 10 March 2000 and having the intention to return to Sydney the following Wednesday to effect the Australia Post presentation. 49 Apart from the contract providing for the applicant to report and be responsible to Mr Ludwig, the evidence also establishes, without conflict on the point, that the applicant took instructions from, reported to and was generally supervised by Mr Boyd. There is thus much to commend acceptance of Mr Ludwig's explanation of the provision in the contract as referring to a legal rather than operational responsibility. However, if that view is accepted, together with Mr Ludwig's view that he was the 'final arbitrator' where there was a conflict in legal and operational responsibilities, there seems to have been a failure to deal that way with the applicant's known position in the final days. If the responsibility provision in the service agreement was to have its intended effect, the applicant's plain requests to have an opportunity to consult with Mr Ludwig about the developing controversy were required to be acknowledged and accepted. The response by Mr Ludwig I consider was wrongly influenced by his earlier perception that the applicant was trying to set up a redundancy; it was affected also by the view the applicant was prone to try to use such discussions to drive a wedge between Messrs Ludwig and Boyd on issues affecting the applicant. 50 There remains the matter of the applicant's conduct, based upon his misconception of his contractual rights, in refusing the final duty allocated to him by Mr Boyd, but which I have no doubt was within his contractual obligations and accordingly amounted to a lawful instruction. While the conclusion about abandonment of employment was inaccurate, the applicant's conduct seems to me to have given rise to the possibility that had the matter been handled differently, the applicant would have been exposed to the risk of dismissal for breach of contract. Mr Boyd had made clear to him that the work he was being offered was the work he had to do and there was no other work to do. Had Mr Ludwig endorsed Mr Boyd's direction to the applicant, after meeting Mr Attwell, and in the absence of a willingness to undertake that work, his continued refusal would unquestionably have created a right for the respondent to treat the applicant as being in breach justifying dismissal. 51 He explained his failure to attend for work on Tuesday, 16 March 2000 on the project to which he had been assigned by asserting that Mr Boyd had told him to wait, in New Zealand, for Mr Boyd's e-mail. Mr Boyd denies having given that instruction and it is highly unlikely that he did so, given the context. I prefer the conclusion that the applicant was sitting on his rights and waiting for a discussion with Mr Ludwig. 52 In these circumstances, this is not a case which may be determined on the basis that fault is wholly to be laid at the feet of one party. The fault is fairly evenly distributed between the parties. If the applicant had complied with his contractual obligations, this case would not have arisen. Equally, if Mr Ludwig had granted the applicant an interview the matter would have taken some different course, or at least have crystallised the parties' positions. 53 However, the applicant was told he had abandoned his employment in circumstances where I have concluded he did not. That means he was actually being denied an opportunity to persist with his employment, an important aspect of which, for present purposes, was his contractual term that he report to and be responsible to Mr. Ludwig. However fallacious may have been his view about the work he might be entitled to reject, the occurrence of the dispute I consider activated the intended effect of the service agreement such that he was entitled to look to Mr. Ludwig to resolve the issue. That he was erroneously regarded as having abandoned his employment is obviously unfair conduct sufficient to entitle him to relief under s.106. (Reich v Client Services Professionals of Australia Pty Limited (Administrator Appointed) (2000) 49 IR 69 at 83). 54 Once it is accepted the applicant did not abandon his employment the practical ending of it means he was deprived of employment without notice. This was not a case of redundancy, as was urged for the applicant; there was work to do which he declined. It is not to the point to wonder what might have happened at the end, even some two or more weeks later, on the completion of that contract. In any event, it has not been established in the applicant's case that he would necessarily have been redundant in due time. The applicant's service agreement provided for termination by the employer upon two weeks' notice; the applicant claims that provision is unfair in the statutory sense, and seeks pay in lieu of six months' notice. 55 I am satisfied, in the particular circumstances experienced by the applicant, that two weeks' notice is unfair. There is no absolute standard by which fair notice may be determined. The fixation requires an exercise of judgment having regard to all relevant factors. 56 Here the applicant had service of two years two months duration. He was in a position which remunerated him at a not insubstantial level, although as I have already held, his functions were not to be regarded as managerial, rather more that of an operational person. I consider that six months' notice would be excessive having regard to the factors of length of service, salary and duties. I would assess that it would be necessary to afford the applicant three months' notice to make the contract operate fairly in the circumstances. The rate of pay to apply thereto I determine as $95,000 per annum plus $6,650 superannuation less any earnings from his alternative activity, the lawn mowing business, which I offset by way of mitigation as to which see Westfield Holdings v Adams (2001) 114 IR 241 at 292. In this respect I consider the applicant should have the mitigation principle applied considering that while he did not obtain "comparable permanent employment" he did undertake his chosen course. I exclude bonus, it not being a factor definite in the applicant's remuneration, nor a matter he would have been likely to benefit from. 57 I find that the contract of employment between the applicant and Maxx was an unfair contract within the meaning of s106 of the Act. 58 I reserve costs. Liberty to apply re costs. 59 The court orders: 1. The said contract is varied on and from 10 March 2000 to provide that the applicant shall receive, upon termination of employment, three months' notice or three months' pay in lieu thereof. 2. In satisfaction of order 1, Maxx shall pay the applicant a sum equivalent to three months' pay at a rate of $101,650 per annum (that is, including his superannuation component), less any earnings from his alternative activity, the lawn mowing business. I reserve liberty to apply with respect to quantification, should the parties be unable to agree. 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