Industrial Relations Commission of New South Wales CITATION: Sarkis Sayadian v Avopiling Pty Limited [2005] NSWIRComm 1072 APPLICANT Sarkis Sayadian PARTIES: RESPONDENT Avopiling Pty Limited FILE NUMBER(S): 3010 of 2004 CORAM: Macdonald C CATCHWORDS: Unfair dismissal - alleged that retrenchment not genuine - case not made out - application dismissed LEGISLATION CITED: Industrial Relations Act 1996 and Rules 1996 CASES CITED: Burns v Aboriginal Legal Service of Western Australia (unreported - 21.11.00) HEARING DATES: 11/04/2004; 02/07/2005 DATE OF JUDGMENT: 05/12/2005 EXTEMPORE JUDGMENT DATE : 05/12/2005 APPLICANT Mr S McBride, barrister LEGAL REPRESENTATIVES: RESPONDENT Mr P Ryan, advocate DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: Commissioner Macdonald 12 May 2005 Matter No IRC 3010 of 2004 SARKIS SAYADIAN v AVOPILING PTY LIMITED Application by Sarkis Sayadian re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2005] NSWIRComm 1072 1 This is an application by Sarkis Sayadian ("the Applicant") for unfair dismissal against Avopiling Pty Limited ("the Respondent") pursuant to section 84 of the Industrial Relations Act 1996 ("the Act"). 2 The matter was set down for Conciliation and Directions on 29 June 2004. At a Report Back held on 6 July, the application remained unsettled and a Hearing was set down for 4 November. The matter was relisted on 30 August at the instigation of the Respondent, as the Applicant had not filed his witness statement by 6 August as required - but filed late by filing on 23 August. As the Commission could not see any prejudice to the Respondent by this delay, the Commission did not entertain the idea from the Respondent's representative, that the application be dismissed for want of prosecution. The filing date for the Respondent's witness statements was amended. 3 At the Hearing, the Applicant was represented by Mr S McBride, barrister who called the following witness: · Mr Sarkis Sayadian - the Applicant. The Respondent was represented by Mr P Ryan, Employers First, who called the following witnesses: · Mr Avetic Tevanian - owner and managing director; · Mr Ganeshan Baskaran - project engineer; · Ms Sylvia Karageuzian - office administrator. 4 The Hearing did not conclude on 4 November and was set down for conclusion on 7 February 2005. BACKGROUND 5 The Applicant had been employed since October 2003. The nature of the Respondent's business is that of piling contractor and other ancillary services. The Applicant was a supervisor at construction sites. The Applicant was terminated on 28 April 2004. The reason for the termination was in dispute. The Respondent's letter of termination (dated 28 April 2004) gives as the reason for termination: " redundancy ". The Respondent said this was due to a deterioration in work and provided in support of that claim during proceedings, a flow chart showing a decline in equipment usage by the Respondent for the period March - July 2004. The Applicant contested the reason for his termination. He pointed out that the Employment Separation Certificate gave as the reason for termination: " unsuitability for this type of work ". He put forward the view that his dismissal was due to his rejecting the Respondent's various work practices that the Applicant believed to be shortcuts, which the Applicant believed would compromise the quality and safety of the Respondent's work. The conversation that took place between the Applicant on the one hand and the owner of the business and the senior project engineer on the other hand, when the Applicant's services were terminated, was in dispute as well. The Applicant also put that the Respondent's letter of 28 April advising he had been made redundant, was first provided to him after he had filed his unfair dismissal application. CONSIDERATION 6 The Commission has before it for consideration a jurisdictional issue and the substantive case. JURISDICTIONAL ISSUE 7 The jurisdictional issue goes to the Applicant filing his application out of time - by five days. Mr Ryan for the Respondent, sought the ousting of the unfair dismissal application because of the late filing. 8 Section 85(1) of the Act fixes a time limit of 21 days for the filing of an unfair dismissal application. Section 85(3) provides the Commission with discretion to accept a late filed application, if the Commission considers there is sufficient reason to do so. In considering if there is a sufficient reason for the late application, the Commission is to have regard in particular to the matters set out in ss 85(3)(a) - reason and length of delay in filing; (3)(b) - any hardship that may be caused to the applicant or the employer if the application is or is not rejected; and (3)(c) - the conduct of the employer relating to the dismissal. In this case before the Commission, Mr Ryan strongly submitted that the unfair dismissal application should be rejected because there was no evidence (documentary or oral) from the Applicant as to the reason for the five day delay in filing. Mr McBride submitted that there was evidence before the Commission as to the reason for the delay. The reason was due to the Applicant's solicitor's office not filing the unfair dismissal application in time. That is, there was an office administrative error. A letter signed by Justin Raine, Associate, bearing the letterhead of the solicitor's office, confirmed this, he said. The letter was attached to the Applicant's unfair dismissal application. 9 Mr Ryan strongly submitted that the unfair dismissal application should be rejected because there was no evidence (documentary or oral) from the Applicant as to the reason for the five day delay in filing. It is certainly correct that the Applicant did not depose as to the reason for the late filing of his witness statement. All that the Commission has before it was the letter of Justin Rose, associate, from the law firm representing the Applicant, giving the reason for the late application. But Mr Ryan objected to this letter of explanation being accepted as evidence because its author, Justin Rose, was not made available for cross-examination. Because he was not available for cross-examination, then his claim as to the reason for the late application, could not be tested in court. 10 The Commission rejects this submission of Mr Ryan. Firstly, the Commission holds that the letter of explanation for the late application (attached to the unfair dismissal application) was before the Commission pursuant to rule 181(2) of the Industrial Relations Commission Rules 1996. And secondly, the letter of late explanation, held information which was in the mind of the Applicant, and which was not tested by Mr Ryan. 11 Rule 181(2) is as follows: "181(2) [ Document marked with seal or stamp of Commission ] A document purporting to be marked with the seal or stamp of the Commission is admissible in evidence without further proof. " By operation of this rule, a document bearing the seal or stamp of the Commission is taken to be before the Commission in proceedings. The unfair dismissal application of the Applicant bears two stamps - one of which is the seal of the Commission. (The other stamp is the date of filing). Accordingly, the unfair dismissal application and any attachment(s), is a document in proceedings before the Commission. The letter of explanation for late filing was attached to the unfair dismissal application when filed at the Industrial Registry. 12 That letter of explanation was not authored by the Applicant and the author was not made available for cross-examination. However, the author made two assertions in this letter and which assertions are attributed to the mind (knowledge) of the Applicant. Thus, the author said: (a) " Mr Sayadian (the Applicant) attended this office and gave instructions on 7 May 2004, well within the limitation period (the 21 day limit)"; and (b) " The Application form was completed and signed at the initial conference ... " The Commission notes that in respect of (b) above, that page six of the unfair dismissal application shows that the Applicant completed his declaration as to the truthfulness and correctness of the contents of this application, as at "7 .5.04 ". This date is the same date as claimed by the author of the letter of late application. Given that the matters in (a) and (b) above were matters within the knowledge of the Applicant and said that the Applicant had given instructions to his law firm and completed his unfair dismissal application on a date prior to the 21 day within time filing period, and given that the foregoing was before the Commission by operation of rule 181(2), then it was incumbent upon Mr Ryan to cross-examine on these matters. He did not do so. It was incumbent upon Mr Ryan to cross examine on these matters as they went to a defence by the Applicant that he was not personally at fault in not filing on time. Further he had given instructions to his instructing law firm within time, and the reason for the late application was, by inference, representative error. There are decisions of this Commission and the Australian Industrial Relations Commission (" the AIRC ") concerning late applications. This Commission relies upon a case in point where the AIRC accepted a late application in the circumstance where the applicant had given instructions to the instructing law firm within time and the consequent late filing was due to representative error: Burns v Aboriginal Legal Service of Western Australia (Williams SDP, Acton SDP & Gregor C, Print T 3496, C No 60611 of 2000 - 21 November 2000, paragraphs 26 - 29) 13 In summary, the Commission rejects Mr Ryan's submission that there was no documentary material before the Commission and reliance is placed on rule 181(2) in that regard. That documentary material contained assertions that were within the knowledge of the Applicant and went to the reason for the late application. As Mr Ryan did not challenge this knowledge, then the Commission exercises its discretion in favour of the Applicant in accepting that the Applicant was without blame and had issued instructions to his law firm within time. In accepting the late application, the Commission has also had regard to s 85(3) as a whole. SUBSTANTIVE CASE 14 The substantive case before the Commission was the Applicant's claim that he had been unfairly dismissed and he challenged the claim of the Respondent that he had been dismissed on the ground of redundancy. Indeed he said that this ground had not been raised with him at the meeting arising out of which he was dismissed. Further this ground as the reason for his dismissal only came to his notice when, he claimed, he only received his dismissal notice letter (dated 28 April) after he had filed his unfair dismissal application, he said. The Respondent said the redundancy was genuine and was caused by a decline in business as instanced by a decline in the use of the number of the Respondent' s rigs on construction sites. The Respondent said that the letter of termination was provided to the Applicant on the day he was retrenched. 15 In considering the conflicting claims as to there being a genuine redundancy, the Commission has had regard to the following issues: - · the credit of the witnesses; and · the circumstances surrounding the retrenchment of the Applicant. The Credit of the Witnesses 16 The Applicant's credit was not brought into question by Mr Ryan. 17 The first Respondent witness was Mr Avetic Tevanian, owner and managing director. During the cross-examination of Mr Tevanian, the Commission made this observation about his evidence so far given: " I do not like, Mr Tevanian, that you keep changing your evidence ." (Tr 4 November - p 45) Mr Tevanian changed his evidence about the following issues: "Had the Applicant been employed initially as a labourer?" and "Did the Applicant get a pay review?" As to the first issue: "Had the Applicant been employed initially as a labourer?", Mr Tevanian gave the following responses:- " Yes ". " No, he was not employed as a labourer ". " ... maybe we should have said (he was employed) as a trainee or something like that, ... " "(He was employed as an) Administration site engineer " (per his pay slip) " Would be more my intention, yes (that he was employed as a supervising trainee)". " ... it is false and true (that he was employed as a labourer)." (Tr 4 November - pp 31 to 34 inclusive) As to the second issue: "Did the Applicant get a pay review?", Mr Tevanian gave the following responses: " No, he did not ." " No. He got a review. " " Yes. He must have got a review. " " Well, he might have got a review. " " No ." (Tr 4 November - pp 34 & 35) 18 Subsequent to the above issues being raised, Mr McBride then questioned Mr Tevanian as to the selection process for the Applicant's retrenchment. It was during this questioning that the Commission warned Mr Tevanian that he kept changing his evidence and directed Mr Ryan (advocate for Mr Tevanian) not to raise any further objections (during the cross-examination of Mr Tevanian). Mr Tevanian protested that he did not keep changing his evidence. 19 The cross-examination of Mr Tevanian concluded on the issue as to whether the Applicant had been retrenched because the Applicant had expressed the view that he wanted to become a property developer. By inference, he was sacked by Mr Tevanian because he was not committed to Mr Tevanian's business. This issue had also been raised during cross-examination prior to the Commission's warning about Mr Tevanian changing his evidence. At that time of the cross-examination, Mr Tevanian contradicted his own witness statement (exhibit 3, paragraph 20) by testifying that the Applicant's interest in going into property development "... would not be a factor " in the retrenchment of the Applicant. (Tr 4 November - p 41) However, in exhibit 3, paragraph 20, Mr Tevanian had said that one of the reasons for the Applicant's retrenchment, was that he had heard that the Applicant was looking at leaving in order to start his own business in land development. Mr Tevanian was requestioned on this issue at the end of his cross-examination and it was put to him, by Mr McBride, that he was lying given his oral testimony and his witness statement pronouncement. Mr Tevanian denied this was so in cross-examination. He said that the Applicant had expressed his interest in going into property development prior to his being hired. Thus, the Applicant would not have been hired at this point if the Respondent was inclined not to hire a person whose business interests lay elsewhere. (Tr 4 November - pp 51 - 52) The Applicant was not recalled to rebut this explanation. 20 During the Hearing, the Commission was not impressed that Mr Tevanian kept changing his evidence in respect of the issues identified above. Was this by design or otherwise? As to the changing of his evidence not being by design, the Commission has had regard to the way in which Mr Tevanian expressed himself in the witness box. For example: "Q. And was it (the Applicant's retrenchment) anything to do with it, (the Applicant's interest in property development) the fact that he was going to - you thought he was going to start another business? A. It would not have a full thing on it, but it would be more reasonable that he was - no, it is better that. " (Tr 4 November - p 40) Another example from the transcript, as to how he expresses himself, goes to one of the issues arising out of which the Commission warned Mr Tevanian about his changing his evidence: "Q. He might have got a review? A. Yes, he might have got a review or I might have spoken to him, I do not remember. But he did not fully sit down and as a pay packet or something, he did not get a review. " (Tr 4 November - p 35) It is clear from these extracts, that Mr Tevanian is not clear, at times, in expressing himself. This extract comes from his testimony under cross-examination where he contradicts himself as to whether the Applicant received a pay review or not (see paragraph 17 above). But when this particular extract is analysed, it is possible to find that Mr Tevanian has not contradicted himself whilst giving his evidence on this issue. Thus, he had responded that the Applicant got a pay review but then said he " must have ", " might have " got a review, to finally saying " No ", the Applicant had not got a pay review. But the quoted extract from above, allows for the finding that Mr Tevanian was meaning that the Applicant had a pay review but did not receive a wage increase as when Mr Tevanian said: " ... and as a pay packet or something, he did not get a review. " 21 As to the finding to be made about the credit of Mr Tevanian, the Commission has considered the matters found in paragraphs 17 to 20 above. During the proceedings, the Commission was not impressed with what the Commission observed to be changing evidence being put by Mr Tevanian. One of the areas of cross examination that caused the Commission to warn Mr Tevanian about his changing of his evidence, was the issue going to whether the Applicant received a pay review. In studying the transcript as to his responses on this issue in cross-examination, it is possible to conclude that he did not change his evidence. This possibility is open on the basis that Mr Tevanian's command of the spoken English language is far from clear sometimes. The Commission has cited two extracts from the transcript on this point. Thus it is possible to conclude that Mr Tevanian's answers in cross-examination on this pay review issue appeared to be contradictory but in reality (and hindsight) he was distinguishing between saying "yes" to the Applicant receiving a pay review , but "no" to the Applicant receiving a pay increase . The other issue that caused the Commission to warn Mr Tevanian about the changing of his evidence was whether the Applicant had been employed as a labourer. Again, on reflection, it is possible that the confusing responses he gave about the job status of the Applicant, were due to Mr Tevanian's command of the spoken English language. The Commission does not hold this " possibility ", to the same level of conviction as the Commission does for the possible explanation for Mr Tevanian's responses to the pay review issue. On balance, having considered the confusing responses of Mr Tevanian to the issues cited above, the challenges by Mr McBride that Mr Tevanian was lying in respect of some of his evidence and the demeanour of Mr Tevanian, the Commission declines to make an adverse finding about the credit of Mr Tevanian. 22 The second Respondent witness was Mr Baskaran, senior project engineer. The Commission makes no adverse finding about the credit of Mr Baskaran. 23 The third and final Respondent witness was Ms Karageuzian, office administrator. At the start of the Hearing on 4 November, Mr Ryan for the Respondent advised that this witness had taken ill, was not available for cross-examination but he sought to tender her witness statement. Mr McBride sought an adjournment to a day when this witness would be available for cross-examination. Mr Ryan responded that if her witness statement was not accepted (without her attendance), then he would proceed with his case without her evidence. Mr McBride advised that he required this witness for cross-examination and if necessary a summons would be issued for her attendance. This turned out not to be necessary as Ms Karageuzian gave evidence on 7 February 2005. The Commission makes no adverse comment about her credit. The Circumstance Surrounding Applicant's Alleged Retrenchment 24 The Applicant was at the Respondent's office on 28 April - having been directed over the telephone by Mr Zoran Matich, plant manager, to do so. At the office, the Applicant deposed in his witness statement that he was provided with a folder, by Mr Baskaran (senior project engineer) containing details for the Applicant's next job to be undertaken. He says that Mr Baskaran also provided the Applicant with an e-tag card for road tolls and a fuel card. Mr Baskaran deposed that he did provide details of an upcoming job at Chullora but had also provided same to other employees. He denied, however, that it was his job to allocate jobs to employees. He denied providing an e-tag and fuel card. Mr Baskaran reiterated the foregoing in his evidence-in-chief and was not challenged in cross-examination as to those matters. 25 The Applicant deposed that Mr Tevanian arrived at the office and spoke briefly with Mr Baskaran. Then Mr Tevanian called the Applicant into Mr Baskaran's office. The Applicant deposed he was dismissed during this meeting and during which Mr Tevanian made adverse comments about the Applicant's attitude to his work. Mr Tevanian deposed that he told the Applicant his position had been made redundant and that it was best if he finished up immediately. Further, he then asked Ms Karageuzian to bring a letter to the office where the three had held their brief meeting. The letter, dated 28 April, advised of the Applicant's redundancy. The Applicant denied their conversation concerned his redundancy. It follows of course, that he does not accept that he was provided with a redundancy letter at that meeting. Mr Baskaran deposed that the Applicant was told that his position had been made redundant and that he saw what he believed to be a letter of termination handed to the Applicant at that meeting. Ms Karageuzian, office administrator, deposed that she had been asked on Friday, 23 April to write a letter of termination on the ground of redundancy. Mr Tevanian had asked her to do this and the letter was to be dated 28 April. On that latter day she observed Messrs Tevanian, Baskaran and Sayadian (the Applicant) in an office. She was called over to the office by gesture of Mr Tevanian and passed the letter to the latter who gave it to the Applicant. Under cross-examination, Ms Karageuzian maintained what she had deposed. 26 In summary of the evidence so far, it is the position that the Applicant's version of the events is up against the versions of Messrs Tevanian and Baskaran as to whether he had been made redundant or dismissed for other reasons during the office meeting. He is also up against the versions of Messrs Tevanian and Karageuzian as to whether he had been provided with a letter of redundancy at that office meeting. He is also up against Messrs Tevanian, Baskaran and Karageuzian a to whether he was provided with a letter at all during that office meeting. 27 The Applicant then relies on other circumstances to challenge the version of events put forward by the Respondent's witnesses, as to his being made redundant on 28 April. One circumstance is his Employment Separate Certificate. The reason given in this document for the Applicant's termination is: unsuitability for this type of work . The reason that should have been ticked but was not is: shortage of work or redundancy . Ms Karageuzian, office administrator, gave evidence that the entry in the Employment Separation Certificate was a mistake and one made by Mrs Tevanian, whose name appears in the Employment Separation Certificate under the heading of: Employer details . Mrs Tevanian was not called by the Respondent as a witness. The date of this document is: 3/05/04 . It is a date several days after the day the Applicant was terminated (28 April) - but prior to the date the unfair dismissal application was lodged (24 May). The matter for the Commission's deliberation is whether to accept the Respondent's claim that the entry as to " unsuitability for this type of work " was a mistake - or to accept the Applicant's claim that this was evidence that he had not been retrenched. The Commission will return to this deliberation in this Decision. 28 Another circumstance raised by the Applicant to show a sham redundancy is that he was provided with a termination letter after he had filed his unfair dismissal application on 24 May 2004. The Applicant's version of the termination meeting of 28 April, is that he was not dismissed on the ground of retrenchment. Accordingly, on his version, he would not have been provided with a termination letter giving "retrenchment" as the reason for termination. The Respondent's witnesses dispute the Applicant's version. Mr Tevanian said he gave the redundancy letter to the Applicant on the day of termination. Mr Baskaran did not see the contents of the letter handed to the Applicant but said the Applicant was given a letter. Ms Karageuzian typed the redundancy letter, she said, and handed it to Mr Tevanian whom she saw hand it to the Applicant. On the face of this evidence against the Applicant, the only conclusion seemingly that can be drawn is that the Applicant was indeed handed a termination letter, being a redundancy. To find otherwise, would require an adverse finding about Mr Tevanian and Ms Karageuzian - that is, a finding that their version as to the termination letter being handed to the Applicant on 28 April, is a fiction and consequently an adverse finding about their credit. The Commission will consider this issue and the conclusion to be drawn, later in this Decision. 29 The Respondent raised an issue during the cross-examination of the Applicant, to argue that the Applicant was not dismissed for other than bona fide reasons. The Applicant advanced as a reason for his dismissal, his questioning of the Respondent's "short-cuts" practices on the job. He said these "short cuts" would compromise the quality and safety of the work. The Respondent countered this claim by asserting that the Applicant had been provided a wage increase a couple of weeks prior to his termination. Whether there was an actual wage increase became a contested issue. The Applicant's starting rate was $55,000 per annum. The parties agreed on this point. The Applicant claimed that his employment was subject to a three month trial and at that point, his salary would be increased to $65,000. This was disputed by Mr Tevanian who said there was no agreement to pay the Applicant a wage increase after three months that would result in a wage of $65,000. What is agreed is that the Applicant was given a $5,000 wage increase but lost his travel allowance of $5,000. The travel allowance was provided because the Applicant used his own means to travel to and from work. The travel allowance was withdrawn when Mr Tevanian provided the Applicant with the use of a company vehicle. (Tr 4 November - p 38) 30 The Commission concludes that the Applicant was provided with a $5,000 per annum wage increase but lost the value of the $5,000 per annum travel allowance when he was provided with a company car. The net result to the Applicant was not a monetary gain. Accordingly, the Respondent's claim that because the Applicant was given a wage increase after the Applicant had made complaints about "short-cuts", was evidence that the Respondent harboured no ill-feeling against the Applicant and supported its claim of a bona fide redundancy, is rejected. 31 The reason advanced by the Respondent for the redundancy, was a downturn in work. The Respondent evidenced this downturn by a specific reference to the number of piling rigs in use. That is, there was a decrease in the number of rigs from six to five. Annexed to the witness statement of Mr Baskaran, senior project engineer, was a coloured chart for the period March to July 2004, listing the Respondent's rigs (by serial number) and their projects. The Applicant's case was that on the day of his termination, he had been called into the office and allocated his next rig project (the Chullora project). Further, he had been allocated this by Mr Baskaran on that day. Mr Baskaran denied this. He said his position did not involve allocating employees to rig projects. No evidence was brought by the Applicant to support his claim that Mr Baskaran allocated employees to rig projects. The Applicant's case was also that there were six rigs and therefore a need for six rig supervisors and he was a rig supervisor at the time of his termination - 28 April 2004. The evidence of Mr Baskaran, however, was that the flow chart for rig usage showed that in the following month (mid May 2004), there was only work for three jobs and hence three supervisors. (Tr 4 November - p 72) Mr Baskaran also said under cross-examination that each rig did not necessarily need a supervisor. Thus, one supervisor, depending on the work involved, might supervise two rigs. The Applicant brought no evidence to contradict that of Mr Baskaran about rig usage. For example, there was no evidence that one or more rigs may lay idle for a period of time but despite that, the Respondent did not retrench its rig supervisors. Given that the Applicant was only engaged for a period of months, it is understandable he could not give such evidence from personal experience. 32 Accordingly, the Commission finds that the Applicant has not been able to contradict the evidence of the Respondent that there was a downturn in the use of the number of rigs. Further, the Applicant did not bring evidence to show that where there is a decline in rig usage, the Respondent still maintains its number of supervisors. Accordingly, the Applicant has not been able to contradict the evidence of Mr Baskaran that a downturn in rig usage necessitated the Applicant's retrenchment. SUMMARY 33 The Applicant claimed that he had been unfairly dismissed. He said that the claim of the Respondent that he had been dismissed on the ground of redundancy was a sham. In considering the claim of the Applicant, the Commission has firstly had regard to the case for the Respondent that the Applicant's redundancy was due to a downturn in business and this was evidenced by a downturn in number of piling rigs being used on projects. The Commission found that the Applicant was not able to rebut this case for the Respondent. Prima facie, this is a persuasive factor in favour of the Respondent's case. 34 The Applicant, however, raised other matters to argue that the redundancy was a sham. He said he was not provided with a redundancy letter of termination at the termination of his employment meeting held on 28 April. Unfortunately, for the Applicant, his claim that he was not provided with such a letter was up against the evidence of two persons that he was so provided: Mr Tevanian and Ms Karageuzian. (Mr Baskaran said that the Applicant was provided with a letter but did not see its contents). The Applicant also pointed to the Employment Separation Certificate which did not give the reason for termination as "shortage of work or redundancy" but "unsuitability for this type of work". The Respondent's case was that this entry was made in error. But the person who made this error was not called as a witness by the Respondent. The person who made this error is Mrs Tevanian, whom the Commission believes to be the wife of the owner of the business. Although the Commission places less weight on this explanation because the explanation for the error was not given by Mrs Tevanian, this evidence, as to the reason for the termination, is not sufficient, in itself, to displace the evidence of Mr Baskaran as to the decline in rig usage. As well, there are two witnesses to say, in any event, that the Applicant was provided with a letter of termination, setting out the reason for termination as redundancy, on the day of the termination. The above is what the Respondent relies upon to say that the Employment Separation Certificate is a genuine error. 35 In assessing the foregoing conclusion that the Applicant had not proven the redundancy to be a sham, the Commission was cognizant that the Commission had rejected the Respondent's argument that it harboured no ill-feeling against the Applicant because the Respondent had given the Applicant a wage increase. The Commission found that there was no wage increase. 36 The Commission also considered the scenario that redundancy was genuine but the Applicant should not have been selected for retrenchment, but rather another employee by the name of "Andre". The evidence that arose during proceedings was that "Andre" was above the level of a supervisor and that he was a fully qualified engineer. As such the Commission does not see this as a ground for the Applicant to argue discrimination in the selection process. 37 In conclusion, the Commission finds that the Applicant has not made out his case that his retrenchment was a sham. Another Issue - Advocacy 38 During the proceedings, Mr Ryan for the Respondent, objected to Mr McBride's (barrister for the Applicant) cutting off Mr Ryan's witnesses in the giving of their evidence. That is, he objected that Mr McBride would not allow, at times, a witness to continue with their evidence in response to a question asked by Mr McBride. Mr Ryan's objections went to those witnesses whom he had called. A reading of the transcript shows that Mr Ryan engaged in the same practice about which he complains. The transcript shows he cut off the answers of the Applicant on five occasions - but did apologise for doing so on one occasion. The other four occasions were:- " Q. Okay. And how would three months compare in terms of time frames with those other projects? A. I mean, there was a wide spread of projects that were going on at the same time. As you know, Avopiling has more than one crew of guys working. I mean, you could have projects, ongoing projects where they have been on for a week, away for a week, back again for years. So how would you classify that? Would you classify that as a long project or-- Q. Well, I will ask the questions. So in your six years ... " (Tr 4 November - p 13) " Q. And yet you say that you were - that Avo wanted to get rid of you because of events in March? A. That is right. I believe that Avo was angry -- Q. Thank you. Thank you. That Avo was angry at you? A. Yes. Q. But then he gave you a pay rise, did he not? A. M'mm. Q. So your suggestion is that despite the fact that he has given you a pay rise, he wanted to get rid of you? A. That is what -- Q. Why did he not get rid of you then? A. Ask him. Also maybe he did not -- Q. Thank you. Thank you. You have answered the question..." (Tr 4 November - p 18) Mr Ryan also cut off his own witness during evidence-in-chief of Mr Tevanian: " Q. Thank you. It has been the further evidence, and something that you have responded to in your statement - I will just take you to page 6 of your statement and paragraph J. Now, in that paragraph, well, the evidence that is already on, you reject the notion that he was terminated because he would not take shortcuts? A. Yes, fully. I never -- Q. Thank you. Now, he suggests that this has arisen some ..." (Tr 4 November - p 30) CONCLUSION 39 The Commission has before it an application for unfair dismissal by Mr Sayadian against Avopiling Pty Ltd. Mr Sayadian challenged the claim of the Respondent that he had been dismissed on the ground of redundancy. Having considered all of the evidence, the Commission finds that the Applicant has not been able to show that his retrenchment was not genuine. The Commission also considered that the need for retrenchment was genuine but the selection of the Applicant for retrenchment was discriminatory. However, the Commission rejected this scenario given the evidence. Accordingly, the Commission declines to intervene in the decision of the Respondent to retrench the Applicant. A Macdonald Commissioner 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.