Industrial Relations Commission of New South Wales CITATION: El-Khatib and Sydney South West Area Health Service [2006] NSWIRComm 1135 APPLICANT Salah El-Khatib PARTIES: RESPONDENT Sydney South West Area Health Service FILE NUMBER(S): 3431 of 2005 CORAM: Patterson C CATCHWORDS: Alleged unfair dismissal due to "irretrievable breakdown in employment relationship" - applicant had been transferred early in his employment due to performance issues - objections, complaints, positions made redundant - originally declared a "displaced" employee - refused new job offers at lower grade(s) due to "deskilling". Held: applicant not "performance managed" according to respondent's own policies - respondent in breach of policy re "displaced" employees and also in breach of award re implications of "deskilling" - applicant should have been offered voluntary redundancy. Recommendation: That such offer be made - if not accepted respondent to pay compensation equivalent to 26 weeks pay LEGISLATION CITED: Industrial Relations Act 1996 HEARING DATES: 20/03/06, 21/03/06, 22/03/06, 23/03/06, 30/06/06, 27/07/06 DATE OF JUDGMENT: 10/09/2006 APPLICANT Mr S Coleman of counsel Mr C Raheb, Solicitor LEGAL REPRESENTATIVES: Oxford Legal RESPONDENT Mr G De Courcey, Solicitor Crown Solicitor's Office DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: PATTERSON C 9 October 2006 Matter No IRC 3431 of 2005 Salah El-Khatib and Sydney South West Area Health Services Application by Salah El-Khatib re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2006] NSWIRComm 1135 1 This application for relief was filed on behalf of Mr Salah El-Khatib, a "specialist in information technology" ("IT") who was dismissed from his employment with Sydney South West Area Health Service ("SSWAHS") for reasons expressed as "irretrievable breakdown" in the employment relationship. 2 Mr El-Khatib was employed under the conditions of two awards: (i) Health Employees' Conditions of Employment (State) Award; and (ii) Health Employees' Computer Staff (State) Award. 3 Mr El-Khatib was appointed to his position under the classification of "Computer Manager Grade 2" on 3 September 1997. He had filled a newly created position which arose from a recommendation issued by the New South Wales Department of Health that Area Health Services ("AHS") throughout the State established a position to co-ordinate the "Y2K" (millennium 2000) project which had been put in place to protect the integrity of the health system data processes. 4 Central Sydney Area Health Service created the position of "Y2K Project Leader" and Mr El-Khatib, who had been lecturing part-time within a tertiary environment, was successful after being interviewed by a panel of three persons which included the Director of Information Systems, Ms Julie Roberts. 5 As I understand, Mr El-Khatib holds a doctorate in science awarded to him by a university in Kent, England. He has extensive experience (presumably in computers) in the oil industry overseas but was "forced" to leave Kuwait following the outbreak of the Gulf War and eventually arrived in Australia sometime in 1995. 6 Employed initially by the Central Sydney Area Health Service ("CSAHS"), as it was then known, his employment fell under the banner of SSWAHS following a programme of area health service amalgamations in January 2005. 7 One effect of the amalgamations, so far as SSWAHS is concerned, was to expose more than 200 positions surplus to requirements. Approximately 40 of these were in the area of information technology. 8 According to policy the service proceeds to identify the position occupants as displaced with its first Goal then attempting to transfer them into alternative roles. In the event that none are available on equal status and pay rate then a displaced person may agree to be placed in a position of lower grade and this salary maintained for a period of three years. 9 Shortly after commencing his role as "Y2 Project Leader" it became apparent to him and his supervisor, Ms Roberts, that each had different expectations and, for reasons I mention later, he was transferred to the Supply division. He had been in the original position for only nine months. 10 Having been effectively displaced, but not declared as such according to policy, the applicant's new position in Supply had been created specifically to accommodate him. Whilst certain of his tasks were to be linked to the "Y2K" project others were progressively built around him according to his skills. 11 A position description was drawn up but he refused to sign it and from thereon his future became a long-running saga with the AHS attempting to deal with his dissatisfaction with management and their dissatisfaction with him. 12 Claiming to have been "marginalised… bullied…harassed" from the outset his complaints led to representation from his union, a complaint filed with the Government and Related Appeals Tribunal, ("GREAT") which was apparently withdrawn due to some jurisdictional considerations, and finally the Industrial Relations Commission ("IRC") by medium of a s.130 notification of dispute. 13 This unfortunate saga carried on for almost six years during which the service, who claimed to have been unhappy with his performance and alleged belligerence, does not appear - according to his personnel file - to have acted upon its own apparently long-standing policies in respect to performance management. 14 Neither does he appear to have been the subject of an annual performance review if his file is a true indication of a further vacuum in the employment relationship. 15 Since the position in Supply developed as one which appears to require a lesser skill base than Mr El-Khatib had to offer - at least in his opinion - he has, over time applied for many positions of equal grade, or higher. However, all have been unsuccessful. 16 Nevertheless - and possibly contrary to policy - his salary as "Computer Manager Grade 2" has been maintained for nearly six years. On the evidence, which I touch on later, this seems to have been the product of oversight rather than a concession. 17 However, the AHS amalgamations in January 2005 revealed Mr El-Khatib as a displaced person, together with so many others, and he was declared as such. 18 Despite the considerable efforts injected into locating another position for him they were unsuitable to his interest and/or skills base according to him. Unfortunately those which became available at his grade or higher were very scarce and there was, understandably in the circumstances, serious competition. 19 And, despite the respondent's undertaking to maintain his grade 2 salary for a further three years, he refused to accept any position of lower grade for to do so would de-skill him. In his view it would potentially destroy his career. 20 On 9 March 2005 the union's notification of dispute came before Commissioner McLeay and seems to centre around the applicant's refusal to accept a specific job offer of lower grade. 21 The matter was listed again on 2 June where, it appears, Mr El-Khatib was put on notice that continued refusal may result in his termination. 22 Although the Commissioner had offered to keep the file open for four weeks pending further consideration by the parties the AHS took precipitative action - only four days later. 23 On 6 June he was presented with a letter which summarised events since being employed and required him "to show due cause" why his services should not be terminated. He was given until 9 June to reply. 24 In his reply Mr El-Khatib stated that he was willing to take on a lower grade position with salary maintenance but repeated an earlier request to be given a period of "priority one" status so that he might succeed in obtaining a position at his current level. If he was unsuccessful then he would remain in the lower grade position. 25 By letter dated 10 June, the following day, he was informed that he was not considered as a "priority one displaced employee" and he had lost the trust and confidence of his employer. His services were terminated with one week's pay in lieu of notice. 26 The Director of Human Resources, Judith Neville, had attended Mr El-Khatib's workplace on that day to present him with his letter of termination but was unable to do so as he had taken his ADO. 27 The letter of termination was then sent to his home by courier and placed under his door. The Hearing 28 Heard over six days the applicant was represented by Mr S Coleman of counsel who called Mr El-Khatib as the sole witness in his case. (I note that the applicant's union was no longer assisting him.) Represented by Mr G De Courcey , solicitor from the Crown Solicitor's Office the respondent called three witnesses: § Judith Neville, Director of Human Resources § Mark Scragg, Manager, Supply Service § Julie Roberts, Chief Information Officer The Evidence 29 For reasons which should soon become apparent to the reader I do not propose to travel through the evidence as it concerns the applicant's alleged failings for I consider it to be unnecessary having regard to the potted history and direction that this sorry and almost endless saga has taken. 30 For convenience, and illustration, I commence by reproducing three of the most recent items of correspondence between the parties for they aptly trace the events and attitudes from each perspective. 31 I reproduce below the respondent's letter to the applicant on 6 June 2005: "Dear Mr El-Khatib Re: Termination of Employment I am writing in reference to your current employment situation as a displaced employee within Sydney South West Area Health Service (SSWAHS). I have been advised that on 24 March 2005 you were informed that you were formerly declared a displaced employee; you have been offered a number of vacant positions, but you have rejected them. SSWAHS has also offered training to upgrade your skills, but you have rejected this. On 31 May 2005 you were offered another position, but you rejected that position, as well; and on 3 June 2005 you appeared before the Industrial Relations Commission where it was stated on record, by both the Commissioner and Ms Judith Neville, Director HR Eastern Zone, SSWAHS that by failing to accept placement in the most recent position on offer a likely outcome would be the termination of your services. Your union was in attendance. SSWAHS is now of the view that the employment relationship has broken down irretrievably and has determined to terminate your employment. This decision has been made following consideration of the following: 1. you were removed from the position of Project Leader, Year 2000 and Infrastructure, in November 1998 for poor performance and that position has subsequently been made redundant. You have been placed surplus to requirements in Central Sydney Supply Service (CSSS). You have retained your salary since November 1998. 2. a job description was provided to you in 2000, to clarify/confirm your role in CSSS, but you refused to sign it. 3. reports from your manager indicate your lack of co-operation in the CSSS workplace - you refused to assist with priority work requirements when there were a number of staff vacancies in CSSS; you refused to sign the statement of duties to confirm your role; 4. the Director, HR, Eastern Zone, previously advised you of a number of vacant positions in both 2003 and 2004, in which could utilise your skills and experience however, you rejected those on the basis they were lesser positions than for which you were originally employed; 5. in November 2004, an offer was made to transfer you to South Western Sydney Area Health Service IT department for a period of 3 months to assess your skill and assist you in applying for any vacancies in other IT departments; but you rejected this offer; 6. as of November 2004 you were unsuccessful in applying for at least three positions; and although you were granted interviews you failed to demonstrate to the interview panels that you had the skills, knowledge and experience required to fulfil the roles/responsibilities. An offer was made to arrange for training in interview techniques and to have a senior HR manager review your CV, along with any of your job applications, to assist; but you rejected this offer; 7. in the last 3 months you have applied for another three positions; and you have not been successful; 8. since 24 March 2005, as a displaced employee, you have been offered four positions with the provision of salary maintenance for three years and priority of employment for other positions; but you have rejected those offers. SSWAHS has exhausted its efforts to place you in a suitable position - you have been less than co-operative; you have rejected all forms of assistance and you have rejected all offers of placement even when training and support were to be provided. Accordingly, I will provide you the opportunity to show due cause why I should not terminate your services with SSWAHS. Your response should be submitted to me by midday Thursday 9 June 2005; you are welcome to email me at jan.whalah@sswahs.nsw.gov.au or deliver it to Level 11 KGV Building RPAH. I will consider your response and then advise you the Area Health Service's decision regarding your continued employment. Should you chose (sic) not to make a submission to me, a decision will be made based on the information provided to me by the Director, HR Eastern Zone. You are welcome to use the services of the Employee Assistance Program (EAP) - they can be contacted on extension 53880. Yours sincerely Jan Whalan Director of Corporate Services " 32 Mr El-Khatib's lengthy reply: "Thursday 9th June 2005 SUBJECT: Why should not Terminate Employment? Dear Ms. Whalan Thank you for your letter of 6 June 2005, in which I am given until 9 June to show cause why I should not be terminated as a consequence of the matters you raise in that letter. I acknowledge that I was made a displaced employee on 24 March 2005, but wish to reply to the matters you raise and the events you relate. I accept that SSWAHS has offered me a number of vacant positions, including one on 31 May, but each position was at Health Service level 1 or equivalent, when I was employed as a Computer Manager Grade 2, Year 4. During this same period, I applied, as a priority 1 displaced employee, for a number of different positions at a higher level, and was awaiting the outcome of these and therefore did not accept the lower graded positions. The comment by the Commissioner was based on Ms Neville's allegation that I did not meet the selection criteria of the positions for which I had applied, before I had been notified of the outcome of that application. Indeed, the allegation in relation to one of the positions is demonstrably wrong, as I was told I met the selection criteria, and I am appealing that matter internally. In the second application I was verbally told I did not meet the selection criteria, of the third I have not been notified, the fourth I was unsuccessful in but met the selection criteria. I am currently waiting the results of 3 applications, for which I am a priority 1 applicant. I am not of the view that there has been an irretrievable breakdown in the relationship as I am prepared to work for the SSWAHS, in an appropriate position. In brief answer to the points you have raised in support of your view: 1. My position statement as Project Leader, which I signed on 3rd December 1997 - Year 2000 and Infrastructure provided that once the Y2K project was complete, I would focus on infrastructure and other Information Technology projects. I was instructed to move to the CSSS in November 1998 without any written instructions or confirmation. I was, in October 1999, informed in writing I had been transferred, as I was unable to meet the requirements of the position for which I was employed. I did not accept this explanation, and this is documented. While the task and the Y2K project may be finished or redundant, my position was intended to continue in other areas. I was not made redundant, I have never been officially reclassified, and until 24th March 2005, I understood that my position continued. ON that date I was made "surplus to requirements" and given priority 1 for redeployment. 2. The draft I was given in 2000 was not a job description. I was given what I understood to be a draft discussion document in relations to my activities in the CSSS to provide some formalisation. I consulted with the Union as the draft position was that of a consultant with no accountability or responsibility, and on their advice, declined to sign it. Had it been a position within the structure with equivalent responsibilities, I would have signed it. 3. I am not sure of the incidents you refer to. I was asked on one or two occasions to perform data entry tasks, normally performed by data entry officers, grade 3 or 4, and I refused. I offered my experience and skills at a proper level, as a willing employee in the CSSS, to assist with the IT area, but this was refused. I assisted the CSSS in Quality, Occupational Health & Safety, and Risk Management programs. Also participated and contributed to several CSSS activities including NSW Health initiatives including EAN Working Party and represented the Area in several working parties. There was no lack of co-operative, and I remain willing to co-operative and help in any way I can at the appropriate level. 4. I remain confident that I am able to obtain employment within the Area Health Service at an appropriate level. I have applied for Quality Management, OH&S and projects etc in addition to IT positions, and am currently the applicant in a number of positions. I have only been a priority 1 employee since 24th March 2005, and have applied for 4 positions since then. I expect that as a priority 1 employee, I would be given a sufficient period, say 1 year, to obtain an employed position at an appropriate level. Had I been made a displaced employee in 1999, I am sure that by now I would be gainfully and happily employed in another position - so I ask that this period be extended to permit me to make applications. 5. My capacity and qualifications were assessed in 1997 when I was employed. I have not been subject to a system of regular appraisal, which has been applied to other staff. On the 2 early occasions (before 1999) when I was formally appraised (as is required by the Equip and accreditation programs) I was not found incompetent. Consequently, having established my credentials, and not being subject to poor appraisals, the proposed procedure was directed to me alone, was extremely threatening, and I refused. 6. The three positions referred to were: a) Quality Improvement Coordinator - HSM level 2 b) Senior Hospital Scientist - Level 4 - 6 c) Project Manager - CIS - HSM level 4 I have not received any written material in relation to these applications, except the Senior Scientist, for which I have lodged an appeal, and in relation to which I have been assured I did meet the selection criteria, and the CIS position for which I have received a letter which does NOT say I failed to meet the criteria, and in which I intend to appeal. There are other positions which I intend to apply for, as they arise, and as a priority 1 applicant, (a status I have enjoyed for about 2 months) have a good chance of obtaining. 7. I take it that these are the positions I have set out in 6. 8. The offers made to me in 24th March 2005 were for: a) HSM level 1 - Quality and Waste Management Coordinator. b) HSM level 1 - Manual Handling Coordinator. c) HSM level 1 - Research Coordinator/Data manager (Temp 1 yr). d) Analyst (HSM level equivalent) - Technical Support Officer. These offers were made for positions 2 grades below my current level, and were made at the point I had been made a displaced employee, and had priority 1 for applications at higher levels. I had little practical choice but to reject them when I might be employed at a higher level. Had I accepted these positions, I would have been moved to priority 2. Had I been given a reasonable time to apply for higher positions unsuccessfully, I may well have accepted the lower grade positions and the commensurate lower priority. I accept that there is a level of frustration in relation to these matters. Indeed, the recent orders of the Commissioner in relation to the position of Technical Support Officer - Analyst, I was unable to accede to for medical reasons (reasons which I had raised in relation to an earlier offer). While you say I have rejected offers of assistance, from my perspective I have attempted to offer my services, and have been rebuffed on many occasions, and have had never been assessed or appraised as incompetent, although this seems to be the thrust of your allegations. I do not understand why a proper system of formal appraisals has not been followed. However that may be, I state that I am willing to take a salary maintenance position, which is within my physical capabilities, if this is of benefit to the AHS, but ask that I be given a priority 1 status for other positions which I consider to be more suitable for a reasonable period - say 3 months. As to whether the positions are indeed more suitable would be a matter for the interviewing panels, rather than my opinion. In this way, I would be able to make a contribution to the AHS, and perhaps be subject to appropriate appraisal, support and performance management procedure which would enable targeted training and potential for advancement in due course. I hope that this answers the concerns that you raise, and provides a way forward other than a termination. It is my intention to take a co-operative approach that would be beneficial to all. Yours truly, Dr Salah EL-Khatib" 33 The letter of termination: Dear Dr El-Khatib Re: Termination of Employment I write in reference to your response to my letter of 6 June 2005, advising you of the intention to terminate your employment with Sydney South West Area Health Service (SSWAHS). I have noted your comments. As a priority one displaced employee, the Area Health Service (AHS) has not placed you in certain positions, nor recommended you for placement into positions for which you have applied, because the AHS considered that you were not suitable. This view has been substantiated by a number of separate interview panels, all of whom have deemed that you are not suitable for appointment to any of the positions for which you have applied. You response of 9 June 2005 again demonstrates that you fail to understand how your employment relationship with the AHS has broken down. The basic issue remains the difference of opinion between you and the AHS regarding your capabilities and those positions that are deemed suitable, or appropriate, for you to be placed in. You were offered a salaried maintained position on 31 May 2005; you declined to accept and you failed to provide sufficient reasons why. By stating that you will determine which positions you are to be granted priority one status for, illustrates that you fail to recognise that it is the AHS responsibility to make this decision in accordance with relevant NSW Health police (a copy of which was provided to you in March 2005). Furthermore, you have continually refused to accept training and other assistance to upgrade your skills illustrates that you are unwilling to co-operate with the AHS in providing you with a suitable position. Given your lack of co-operation to date I am unconvinced by the assurance that you have provided in your letter of 9 June 2005; and as you were offered a salary maintained position as recently as 31 May 2005, which you declined to accept, I consider no such offer need be made again. You were urged to consider accepting this offer when you appeared at the Industrial Relations Commission on 2 June 2005. The AHS considers that it has exhausted all avenues to assist you. Accordingly, your services are terminated effective immediately. You will be paid one week's pay in lieu of notice. I have advised the pay office to pay all outstanding entitlements to you on receipt of a clearance certificate to indicate that all SSWAHS property has been returned. You are required to vacate SSWAHS premises immediately. Yours sincerely, Jan Whalan Director of Corporate Services 10 June 2005 cc: Gerard Hayes, HSU Organiser" 34 By letter dated 28 June the applicant sought re-consideration in the form of re-instatement or re-employment and foreshadowed the possibility of litigation in the event he did not receive a favourable response. The rest is history. 35 Throughout this matter there has been much reference in the applicant's case that the respondent's policies in certain award requirements have not been followed. 36 And whilst I do not propose to deal with many of these claims - considering it also to be unnecessary in the circumstances - I remind the applicant that certain of these oversights have worked to his advantage and, in particular, the fact that he had unofficially remained on salary maintenance since occupying the Supply position for almost six years. 37 Given the serious nature of the allegations concerning his poor performance, attitude, belligerence, communication skills, obstinance and failure to comply with directions the respondent could have, like so many other respondents, have taken steps to terminate his services after only nine months into his employment. This assumes, of course, that the allegations could have been substantiated. 38 But, whilst the formal requirements of performance management were not followed by Ms Roberts I accept her evidence that she "did not have time" and, in any event, maintained a preference to approach his alleged difficulties in low-key fashion in the form of regular one-on-one discussion. 39 As matters reached a stage where she considered his further involvement as "Project Leader" to represent a serious potential risk she took steps to have him moved sideways. 40 Her concerns, in some respects, became shared by Mr Scragg who claims to have difficulty with the applicant who would seem to ignore certain program priorities in preference to his own. 41 According to Mr Scragg this also presented risk and the applicant's alleged reluctance or refusal to perform duties which he considered as below his station created continuing difficulty. And, in the meantime, for more than five years the see-saw of discontent continued. 42 However, with the AHS amalgamations, and consequently, the declaration of Mr El-Khatib as a displaced employee - as with so many others - I am satisfied on the evidence that management applied every available effort to accommodate him to an alternative position pursuant to its police of managing displaced employees. 43 Similarly, whatever had gone before, I share his concerns as to the potential impact upon his ultimate career prospects should he have accepted a position one or two lesser grades. 44 For professionally-trained personnel faced with such a possibility as no fault of their own, the generous offer of salary maintenance is not the sole consideration to be taken on board. Many such persons will wish to consider all of the implications that may be associated with interruption to a career path and, perhaps, putting a lid on it forever. 45 The natural response is for them to seek alternative opportunities elsewhere, as the applicant has done. Some may offer themselves retrenchment since their jobs have become redundant. 46 In this case it seems the applicant did not opt for the latter - and none was offered either to him or as I understand, to the so many other staff who had been identified as displaced employees. 47 I do find this strange when the NSW Health "Policy Directive" which deals with the management of displaced employees does provide scope for "voluntary redundancy" in certain circumstances. 48 A most comprehensive document, extending to 24 pages, the Policy Directive (issued on 5 October 2000) is as detailed and thoughtful as any I have seen. 49 As it relates to "Voluntary Redundancy" the Directive provides at 5.1 that it "may be appropriate" when: (a) a facility is to close, and/or functions associated with the positions/jobs at a facility are discontinued including situations in which the position/job is moved to a substantially different work location, other than as a result of market testing and contracting out; or (b) restructuring within an organisation has resulted in a loss of positions/jobs and no other suitable positions are available. Voluntary redundancy generally would only be offered in cases as outlined above. However, in some special circumstances a more general program of voluntary redundancy may be appropriate, given the numbers, occupations and locations of positions/jobs affected by the changes. Displaced/excess employees are to be advised of the range of services, and information sources available to enable them to make informed decisions regarding their future…" 50 The Directive, in section 5, provides an overview which precedes the above: "GENERAL Voluntary redundancies are offered to individuals as a result of their position no longer being required by the employer, and there not being any likelihood of redeployment to another position within the public health system. Voluntary redundancy will be offered in cases where the Health Employer, following consultation with the relevant unions, consider it impracticable to retrain the displaced/excess employee for the purpose of redeployment and the knowledge and skills of the employee in the deleted position/job are not in demand." 51 The Directive provides at 5.2: "Chief Executive Officers are delegated with authority to formally offer employees voluntary redundancy, subject to the provisions in Section 1.4" (which deals with "a planned program for organisational restructure"). 52 Clause 33 of the Health Employees' Conditions of Employment (State) Award, provides inter alia: "33. Labour Flexibility (i) An employer may direct an employee to carry out such duties as are reasonable, and within the limits of the employee's skill, competence and training consistent with employee's classification, grouping and/or career stream provided that such duties are not designed to promote deskilling…" 53 Since Ms Neville acknowledged in cross-examination that the effect of Mr El-Khatib's acceptance of a lower graded position could have consequences of de-skilling - and the two positions occupied by him had become redundant, I enquired as to whether a voluntary redundancy had been offered, or even considered. 54 Furthermore his position in Supply, which had been created for him - and for which he refused to sign the job description due to his opinion that it represented de-skilling - never seems to have been graded in my understanding of the evidence. 55 I reproduce below some extracts of transcript of 28 June in which I asked Ms Neville: "COMMISSIONER: Q. I just have a couple of questions for clarity. The transfer of the applicant to supply in November 1998, I think it was, the position that he was transferred into, was that created for him? A. The role was created for him, Commissioner. There was no position. Q. Right. So the role lived and died with him? A. That is correct. Q. Now, was that role or the duties of that role assessed as being equivalent to the CM2? A. I'm not aware of that, Commissioner. Q. Was there any assessment ever done? A. Not as far as-- Q. I guess what I'm asking is was he performing duties that were in that position lower than what would normally be performed by a CM2? A. Mark Scragg, the manager of the supply service, drafted a job description for Dr El-Khatib. Q. Which he refused to sign? A. That is correct. I haven't looked at that for a while, but my view would be that it would certainly be within a couple of grades of what Dr El-Khatib would be capable of performing. Q. Because I was wondering if any assessment had been done in that regard, because I was really wondering whether in reality he had been displaced from that moment on, November 1998, and whether or not I should regard him as having been placed on salary maintenance for all of that time, until the time of his dismissal. A. Well, from the area's point of view, Commissioner, we believe that he was displaced from that period of time. Q. Right. A. One of the reasons I was concerned when I discovered that he hadn't been issued with a displaced letter at that time, and that's why I raised it with the union in 2003." (pp.38/39) 56 Further at page 40: "Q. Okay. Now, when he transferred over to supply, his position originally occupied effectively became redundant, didn't it? A. Yes, I believe that they did not re-employ anybody into that position. Q. No. Now, in the course of all of this and from that time, was he ever offered voluntary redundancy? A. No. Q. Why is that? A. It's the Area Health service's position that we don't offer voluntary redundancies, we place our staff into vacant positions. Q. And what if you can't place them into an equivalent position? Doesn't the question of voluntary redundancy then arise? A. That's the Area's position, we try and place them into as close a position as possible. But it might mean that they go into a lower grade of position. Q. But your police does allow it, doesn't it? A. It does. Q. It was never considered on this occasion? A. No." Consideration 57 Both positions occupied by the applicant are confirmed as redundant - and, it seems however, the respondent held genuine concerns in respect to his performance in the first it does seem that he also had cause for real apprehension in respect to the second. 58 It follows, therefore, that if his fears of being de-skilled in the second role - which he occupied for nearly six years might reasonably have explained certain of his reactions to subsequent job offers made to him. After all there was the potential of de-skilling to be continued ad infinitum and, perhaps, ever being multiplied. 59 And I have little doubt that this must have figured as a major ingredient in his failure to meet Mr Scragg's reasonable expectations. 60 I also have no doubt, given the evidence and the demeanour of the witnesses, that he was not the easiest person to deal with in the course of his employment - whether he had genuine cause for complaint or otherwise. 61 At the very least Mr El-Khatib is a pedant - no doubt about it - but he had rights, certain of them being confirmed by a combination of the respondent's policies and the Award. And he pursued those rights relentlessly - he milked them dry. 62 In my opinion, therefore, I consider that whilst performance issues may have been reasonable grounds for dismissal in the earlier period of his employment - they effectively diminish from the time he was officially declared a displaced person following the amalgamation in January 2005. 63 From that time on he fell into the same category as several hundred others for whom the AHS would no doubt use its best efforts to accommodate in alternative positions. 64 Huge challenge, no doubt, for the respondent who could have eased the process - and possibly the ultimate expense - by involving the policy which provides for voluntary redundancy. 65 Given the differing needs and aspirations of employees placed in such an unfortunate position, it seems to me that the Policy Directive aptly provides a vehicle for re-deployment pursuant to the limited opportunities available - provided they be considered against the provisions of the Award. 66 Viewed in combination they present a formula based upon a foundation of operational need, personal choice and mutual outcome to the extent that may be possible. 67 Of course, it must be remembered that such an approach is not designed for the exclusive interest of the parties to this dispute or other disputes of this kind within the public sector. 68 There is the public interest - for how long does a person remain on the unattached list? Is there a policy in respect to that? And, given the Award provision as to de-skilling is it reasonable - or even legal - for the respondent to coerce a displaced employee into accepting a lesser graded position under the lure of salary maintenance? I think not - on either count. 69 And, in the circumstances of this case, is it reasonable for Mr El-Khatib to have been dismissed for reasons of "irretrievable breakdown". If matters might be reasonably assessed as having reached the lowest ebb of the employment relationship should he bear the entire burden of that predicament? 70 I think not - difficult individual though he may be in the respondent's experience, such burden for the "breakdown", according to the evidence, is one that ought be shared. Conclusion 71 Whilst I have considerable reservations as to certain of the claims made by Mr El-Khatib - "intimidation … harassment … bullying … marginalisation" where he would have me believe his fate to have been the product of some sort of conspiracy against him, I do not believe this at all. 72 On the contrary, some have tried hard to help him, including his Union, others have tried to tolerate him. In any event, I am satisfied that none of the witnesses called by the respondent had orchestrated some harm against him. Whilst I believe he had become a pain in the neck I detect no malice towards him. 73 Things could have been done better, that is all, and the authority for appropriate outcome does not come from any of those witnesses but from the Chief Executive Officer himself. 74 In this respect my remarks should not be interpreted as being directed towards him as he would have likely considered the Policy Directive in respect to displaced persons under his charge after consideration of specialist advice provided from a number of quarters. 75 And, it may be, that such advice and considerations go beyond the issues raised in this matter. 76 However, with respect to all of those who had a part which led to Mr El-Khatib's predicament(s) I consider the appropriate course would have been to offer him voluntary redundancy. 77 In reaching this position I appreciate that my conclusions do not represent the primary strand of the applicant's case or the outcome sought - a declaration that his dismissal was "harsh, unreasonable or unjust" in support of a claim for 26 weeks' compensation. 78 I note with interest that Mr El-Khatib has remained unemployed from the occasion of his termination, 10 June 2005 up to and including the period leading to the final hearing date in this matter, 27 July 2006 a few days before my proceeding on pre-retirement leave. 79 According to the material tendered in evidence in answer to my questions as to mitigation of losses this man has not sat on his laurels. On the contrary he has applied for over 100 positions and not, according to his evidence, gained a single interview. In the meantime he has been performing various charity work within his local community and no claim has been made for social security assistance. 80 I find this incredibly difficult to understand - unless his opinion of what he had to offer far exceeded the perception of those to whom he offered his services (not unlike the SSWAHS perhaps). Perhaps a reputation for alleged intransigence has preceded any application made - the word has got around. 81 Having considered the evidence, whether or not it is mentioned here, and the demeanour of the witnesses, I find the applicant's termination of services in the manner done to have been unreasonable. 82 Accordingly, I decide to issue an Order in favour of the applicant for an amount of compensation. However, such Order shall not have effect if the parties agree to accept a Recommendation in terms which I believe to be more appropriate, practical and which more properly meets the future employment aspirations of the applicant. 83 So as to reflect the form of mutual outcome I recommend the following: 1. That the respondent withdraw the dismissal notice served on 10 June 2005 together with the letter to "show cause" issued on 6 June 2005; 2. That the respondent amend its records to reflect that the applicant's position had become redundant as a consequence of the amalgamation process which took effect in January 2005; 3. That a position of equal grade had not been otherwise available to him and, as a consequence, was granted access to the NSW Health policy (PD2005.517) "Managing Displaced Employees", Section 5 "Voluntary Redundancy"; 4. That the applicant accordingly receive the benefits and compensation as provided together with a statement of service to this effect and that his separation certificate be amended to reflect same; 5. That he be provided with a statement of service to this effect and any future enquiries from potential employers be exclusively directed to the Human Resources Director, Ms Judith Neville; 6. That a Deed of Release be entered into which shall incorporate the above strands of Recommendation with appropriate attention given to confidentiality, no disparagement and the like; 7. That the parties meet within seven days to consider this Recommendation with a view to formalising the arrangements within a further seven days hence and a copy of the Deed, once executed, to be filed within the Commission's Registry within three days. 84 Should the parties be unable to accommodate the above Recommendation the following Orders shall take effect from 30 October 2006. 1. That the respondent shall pay to the applicant a sum equivalent to 26 weeks' pay; 2. That this sum shall be paid within 21 days from the above mentioned date. 85 As to costs I note the applicant's counsel having put the Commission on notice that, in the event of the applicant's claim being successful, he may seek a re-listing in this respect. 86 Since I will retire from my service in the Commissions the day of this Decision being published, no further application can be heard by me. If pursued further another member will need to be assigned to the task. 87 However, I offer the observation that - in my opinion - the respondent has not conducted itself in such a fashion as I believe an order for costs would arise. 88 So far as I am concerned. This matter is concluded. R J Patterson 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.