Russell Gilger v Eds (Australia) Pty Limited and Eds Global Services Inc [2005] NSWIRComm 21 (24 February 2005)

Last Updated: 4 March 2005

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : Russell Gilger v EDS (Australia) Pty Limited and EDS Global Services Inc [2005] NSWIRComm 21

FILE NUMBER(S): IRC 2800

HEARING DATE(S): 08/11/2004, 09/11/2004, 10/11/2004, 11/11/2004

DECISION DATE: 24/02/2005

PARTIES:

APPLICANT:

Russell Gilger

RESPONDENTS:

EDS (Australia) Pty Limited

EDS Global Services Inc

JUDGMENT OF: Staunton J

LEGAL REPRESENTATIVES

APPLICANT:

Ms K Nomchong of counsel

SOLICITORS:

Verekers Lawyers

RESPONDENTS:

Mr J Fernon SC

SOLICITORS:

Baker & McKenzie

CASES CITED:

LEGISLATION CITED: Industrial Relations Act 1996

Supreme Court Act 1970 (NSW)

JUDGMENT:

- 67 -

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

CORAM: Staunton J

DATE: 24/2/2005

Matter No IRC 2800 of 2002

Russell Gilger v EDS (Australia) Pty Limited and EDS Global Services Inc

Application for relief under section 106 of the Industrial Relations Act 1996

JUDGMENT

[2005] NSWIRComm 21

1 The first respondent operates an information technology and IT services business in Australia. It is a wholly owned subsidiary of Electronic Data Systems Corporation (EDS). The second respondent is also a wholly owned subsidiary of EDS. It (the second respondent) is a corporation registered in the United States and has the care, conduct and control of employees of EDS who work on foreign expatriate assignments.

2 The applicant is a United States national and, while residing in the United States with his family, was employed by EDS in or about January 1999 as a consultant engaged to work on logistical contracts in the Government Consulting Services Group. Between January 1999 and August 2000, the applicant undertook work on behalf of EDS on projects in the United States and on expatriate assignments in Japan and Hong Kong. During that period the applicant was promoted from the position of consultant to that senior managing consultant.

3 In August 2000, the applicant was interviewed in relation to undertaking work for the first respondent in Australia. That interview was conducted on behalf of the first respondent by Mr David Joseph. Following those interviews and in approximately September 2000, the applicant was offered an expatriate assignment providing services to the first respondent's Strategy Innovation Office on a six month short term expatriate assignment as part of the first respondent's contract with the Commonwealth Bank of Australia (CBA). That position was located in Sydney. The applicant accepted the position and commenced on or about 6 October 2000.

4 Shortly after the applicant's arrival in Australia, his expatriate assignment was extended from a six month assignment to one of two years. As a consequence, his expatriate assignment was nominated to begin on 6 October 2000 and his anticipated repatriation date was 6 October 2002.

5 On or about 24 September 2001, the applicant's expatriate assignment was terminated effective from 31 October 2001. Following that decision and a series of events between the applicant and the respondents, the applicant's contract of employment was terminated by the respondents as of 5 February 2002. No monies were paid to the applicant on the termination of his employment.

6 As a consequence of the action undertaken by the respondents in relation to his contract of employment, the applicant filed an application for relief pursuant to s106 of the Industrial Relations Act 1996 (the Act). In the summons filed, the applicant alleges that the contract and/or arrangement between the applicant and the respondents under which the applicant performed work in the information technology service industry was and is unfair, harsh and unconscionable and contrary to the public interest. In so alleging, the applicant has pleaded some sixteen particulars going to the alleged unfairness substantively pleaded.

7 In addition to the usual orders going to interest and costs, the applicant seeks relief from the Court in the following terms:

[2] An order declaring void in whole or in part or varying in whole or in part and either from its commencement or from some other time the said Contract between the Applicant and the Respondent (save and except for any moneys paid pursuant to same).

[3] Further, or in the alternative, an order varying the Contract from its commencement or from some other time to include the following terms:

(a) Upon termination of employment for any reason the Respondents shall make a payment to the Applicant equivalent to the total remuneration he would have received had he remained in employment until 6 October 2002 under his expatriate arrangements;

(b) For the purposes of paragraph (a) 'total remuneration' shall be calculated by reference to all monies paid to the Applicant under the Contract and shall be inclusive of salary, bonuses, commission, car allowance, superannuation and other allowances and payments including payment of all Australian taxes levied in respect of such payments;

(c) In the event that the Respondents (or either of them) terminate the Contract by reason of the variation of the duration of the expatriate assignment, the Respondents shall pay to the Applicant a sum in respect of reasonable relocation expenses, whether or not the Applicant has made arrangements to return to his country of origin at the time the Contract is terminated.

[3A] Further, an order deleting any and all provisions which permit the Respondents to alter the duration of the Applicant's assignment in Australia without making the payment referred to in sub-paragraph (a) hereof.

[4] Further or in the alternative, an order that the Respondents pay to the Applicant such amount of money in connection with the contract so avoided or varied as may appear to be just in the circumstances and that in the event that any such money orders are referable to amounts payable in US dollars, that the exchange rate to be applied is that applicable as at the date of termination of the Contract.

8 In support of his application, the applicant filed four affidavits with various annexures. He gave evidence in support of that material.

9 On behalf of the respondent, the following witnesses together with their affidavit evidence were relied upon.

(i) Mr David Joseph. Mr Joseph currently holds the position of Director, Solutions Consulting with EDS (Australia) Pty Limited. That position is located in Sydney and Mr Joseph has held this position since July 2002 having been employed by EDS (Australia) or its related companies since February 1985.

Between May 2000 and June 2002, Mr Joseph held the position of Client Executive, e.Soultions Asia Pacific. In that role, he had overall management across all business undertakings involving e.Solutions with both existing and new customers. In that position, that business included the contract between the first respondent and the CBA. It was Mr Joseph, in his management position as Client Executive for e.Soultions who interviewed the applicant for his expatriate position in Australia on behalf of the first respondent. The applicant was employed to work in the e.Solutions Division under Mr Joseph's overall management and control.

(ii) Mr Mark Alder. Mr Alder currently holds the position of Major Sales Consultant, EDS Asia Pacific South Sales Organisation. That position is based in Sydney and he has held this position since September 2002. From approximately January 2000 to March 2001, Mr Alder was the Client Delivery Executive for EDS e.Solutions line of business in Australia. In that role, his primary responsibilities related to the delivery of e.Business services to the Commonwealth Bank of Australia (CBA). From March 2001 to September 2002, he was the Chief Technology Officer for the first respondent on the CBA account.

At the time he commenced his expatriate assignment, the applicant reported directly to Mr Alder. The applicant worked relatively closely with Mr Alder from the time of his arrival until approximately July 2001 in that Mr Alder was his direct manager. As well, the applicant and Mr Alder both worked in the same office area during that period.

(iii) Mr David Deitchman. Mr Deitchman holds the position of Senior Attorney, Labour and Employment, EDS Legal Affairs Division, Electronic Data Systems Corporation. He has held that position since September 2000 and is located in Plano, Texas, United States of America. Mr Deitchman gave his evidence in support of his affidavit by video teleconference link.

Mr Deitchman was the relevant corporate person who became involved in relation to the applicant in or about December 2001 when the applicant's solicitors, acting on instructions, corresponded with the first respondent in relation to the applicant's position. Mr David Joseph, on behalf of the first applicant, sent that correspondence to Mr Deitchman.

On behalf of the respondents, Mr Deitchman was involved in discussions with the solicitors for the applicant during the period December 2001 to January 2002 in attempts to resolve the matter between the applicant and the respondents. That is, the respondents expressed desire that the applicant return to the United States as his expatriate assignment was completed. In turn, the applicant was refusing to return to the United States unless a specific position could be identified for him. That issue and evidence relevant to that issue will be dealt with further in this judgment.

(iv) Ms Adelaide Black. Ms Black holds the position of Asia Pacific Expatriate Management for the first respondent. That position is located in Melbourne. She has held that position since June 2000. In that position, Ms Black's role is to:

(a) coordinate Expatriate and International Local hires assignments and paperwork in the Asia Pacific.

(b) be the central point of contact for Leaders, HR and employees relating to Asia Pacific Expatriate Management.

Ms Black's affidavit was tendered without objection and she was not required for cross examination.

10 There was no issue as to jurisdiction.

Relevant facts and considerations

11 In order to appreciate relevant aspects of this matter, it is necessary to explain the provisions relating to expatriate assignments as found within the expatriate policy of the respondents. A copy of that policy as it appears on the first respondent's intranet was attached to Ms Black's affidavit. As I understand it, that attachment encompasses the whole of the respondent's policies and procedures in relation to expatriate assignments. It is some sixty seven pages in length. It is not my intention to incorporate the whole of the policy and procedure document in this judgment. Suffice to say that the expatriate assignment provisions allow for a number of costs to be paid by the respondents in relation to the expatriate assignment including, but not limited to, the following:

· Round trip airline tickets for the applicant, spouse and all dependant children for home leave travel;

· Cost of living adjustment;

· Housing and utilities allowance;

· Car allowance;

· Education allowance;

· Expatriate premium allowance;

· International medical insurance;

· Tax advice services;

· Moving expenses; and

· Transfer or mobility premium allowance.

12 In addition to the policy and procedure provisions, any employee undertaking an expatriate assignment is required to sign a letter of understanding. In accordance with the respondent's policy, the terms and conditions of the applicant's expatriate assignment were governed by the letter of understanding he signed. That document acknowledged, on its penultimate page, that the applicant accepted his expatriate assignment from the United States to Australia and in doing so, understood that the expatriate assignment 'will be subject to the terms and conditions of the EDS Global Deployment Policy (Policy) and the specific terms as provided herein.' Significantly, that acknowledgement contained the following term:

However, you understand and agree that EDS, in its sole discretion, may change the duration of the assignment at any time.

13 Not surprisingly, that condition and the exercise of it by the respondents became a significant issue in this matter. I will return to it in more detail in due course.

14 The relevant letter of understanding and the acknowledgement referred to, signed by the applicant and Mr Mark Alder on behalf of the first respondent, is dated 27 October 2000.

15 The applicant was one of a small group of people interviewed by Mr Joseph on behalf of the first respondent in or about August 2000 for the purposes of undertaking the expatriate assignment. The first respondent had, and still has, a contract with the CBA whereby the first respondent provides services to the CBA in relation to information technology. That contract is a long standing one and, on any view, a very valuable one. According to the evidence of Mr Alder, he estimated the value of the contract as between the first respondent and the CBA as $US3.3 billion.

16 Part of the contract between the first respondent and the CBA was to implement internet banking for CBA customers. That involved a commitment by the first respondent to deliver the capability for internet banking by early 2000. For reasons that were never fully explained in evidence before me, that date was missed and the implementation of internet banking was delayed. According to Mr Joseph, 'this gave rise to significant dissatisfaction on the part of the CBA with the level of service provided by the first respondent'.

17 In or around July 2000, a decision was taken within the management structure of the first respondent, particularly involving Mr Joseph, that in order to address the CBA's unhappiness over the delay in implementing internet banking, they needed to engage 'a crack team to demonstrate to the Bank that we have experience and expertise in e-business.' As a consequence of that decision, it was necessary to search globally for the right employees to undertake that task. Mr Joseph commenced a recruitment process and made contact with global business leaders in the e.Solutions branch of EDS, explaining to them the roles that existed within the first respondent and what they were looking for in order to address this contractual problem with the CBA. It was as a result of this process that the applicant's name, amongst others, was provided to Mr Joseph.

18 Mr Joseph initially interviewed the applicant some time in early August 2000 and again some two weeks later. As a result, he offered him a six month expatriate assignment with the first respondent located in Sydney. The purpose of that assignment was to work on aspects of the first respondent's contract with the CBA. The applicant accepted the initial six month expatriate assignment. He says in his evidence that he did raise with Mr Joseph at his second interview, when the offer was made to him, that he would like a specific agreement in his contract that would allow him to travel home to the United States by business class flights for two weeks every four to six week period in order to spend some time with his family. According to the applicant Mr Joseph agreed to that. Mr Joseph disputes his agreement to such a condition and there is no independent evidence about that matter before me. In any event, given what transpired shortly after the applicant arrived in Australia, it renders any finding on that issue unnecessary.

19 One of the reasons the applicant gives as to the basis on which he accepted the initial short term expatriate assignment and subsequently had the assignment extended to the long term two year assignment was his perception as to the 'stability' of the contract between the first respondent and the CBA. In other words, the contract was a long term one over a ten year period. Subject to performance, the applicant fully expected that his skill set would be required for the full two years of the long term expatriate assignment.

20 There was some issue between the parties as to who was the initiator of the extension of the short term six month expatriate assignment to the long term two year assignment. I do not believe that it ultimately matters very much but it would seem that the issue was certainly raised as between the applicant and Mr Alder shortly after he commenced employment in Australia in early October 2000. Mr Alder agreed that there were discussions between the applicant and himself at that time with a view to extending the applicant's assignment for a longer period than the initial six months. I believe it more likely the applicant raised with Mr Alder the possibility of his short term assignment being extended. Mr Alder was happy to support that because he believed the issues that needed to be addressed as between the first respondent and the CBA would not be addressed within six months and the services of the applicant may well be required for a longer period. As he said in his evidence, he agreed to the applicant's request and proceeded to make the proposal for the expatriate assignment a two year secondment. He states that he did that because he wanted to get 'maximum flexibility as it was not yet clear how long resolution of the issues on the CBA account would take.' For that reason Mr Alder was more than happy to facilitate the necessary steps in order to have the applicant's expatriate assignment approved and extended to a two year period. On behalf of the first respondent, Mr Joseph subsequently approved the appointment as a two year assignment.

21 It was generally agreed that the decision to approve an expatriate assignment within the respondent's global corporate structure is not taken lightly. In order to justify an expatriate assignment rather than use a local employee, it is necessary in the first step to identify the skill set that is required and, by way of a local search, ensure that there are no employees locally who have that identified skill set. That step was not necessarily done in relation to the applicant because it is clear the first respondents wished to demonstrate to the CBA that they had people who had significant experience in e-commerce. The candid acknowledgement of Mr Alder as part of this process was his evidence that:

Part of the client's requirement is often to see global expertise and in some cases its as simple as a foreign accent in the process.

22 The respondents global deployment policy in relation to expatriate assignments makes it clear that international assignments are limited to employees who have been identified as either a 'high potential' candidate for senior leadership under succession planning or an employee who 'can provide technical and management expertise that is unavailable in the host country.' Technical and management expertise qualifying for international assignments is defined as:

· providing specific skills or knowledge to meet contractual requirements;

· transferring technology to local employees;

· initiating new business activities in a country in which EDS has no presence;

· developing infrastructure for new accounts of locations.

23 As I understand the nature of the applicant's particular skills and the requirements of the first respondent in relation to its contractual difficulties with the CBA, he was primarily identified as suitable for this particular expatriate assignment with the first respondent because of his technical and management expertise in relation to information technology.

24 In addition to fulfilling the assignment requirements, it is necessary for the home and the host country to finalise a number of steps before the employee can take up his or her assignment. In the case of the applicant, having regard to the respondent's global deployment policy, there were two entities that had certain responsibilities. One was the home country and the other was the host country. In the applicant's case, the home country was the United States and the corporate entity was the second respondent. The host country was obviously Australia and the relevant corporate entity was the first respondent. Within the two corporate entities, the Senior Executive Leader of each organisation was responsible for discharging his/her responsibilities in accordance with the EDS guidelines in relation to expatriate assignments, particularly in relation to repatriation of the employee on completion of that assignment.

25 In addition to ensuring that the necessary approvals and sign offs, including visa applications and so on had been undertaken, it was necessary, in relation to expatriate assignments, for a cost benefit analysis to be undertaken as part of the approval process and for obvious budgetary purposes. Budgetary responsibility for the cost of the expatriate assignment had to be assigned. In relation to the applicant, once the decision had been taken to employ an expatriate, then the first respondent took on the budgetary responsibility for that expatriate assignment. It was acknowledged by all parties, including the applicant, that the cost of an expatriate assignment was significantly greater than that for a locally based employee. Mr Joseph confirmed that the cost of an expatriate employee is approximately three times that of a local employee. In unchallenged documentary evidence the applicant produced the costing undertaken in relation to his expatriate assignment in November 2000, that being US$383,739 (exclusive of tax costs).

26 There seems little doubt that the decision to engage an expatriate employee is both a detailed and expensive exercise.

27 By 26 October the applicant's initial six month short term assignment had been replaced by a two year long term assignment. By all accounts, the applicant was delighted with that extension. Even at that early stage, he envisaged significant career opportunities for him with the first respondent, both in Australia and the Asia Pacific region. For example, on 26 October 2000, the applicant was already emailing EDS management executives in a way that clearly intimated he viewed the change of his expatriate assignment from short to long term as opening up distinct career opportunities that went beyond the CBA account. That email of 26 October 2000, identifying the subject as 'Russell in Australia' said relevantly as follows:

This will be news but should not be a shock to anyone. EDS Australia and I have mutually been discussing the viability of changing my current short-term expat engagement into long-term arrangement (2 years). I am inclined to proactively pursue that option and EDS(A) [Mark Alder] has indicated they would support that decision. I see that I can offer a lot of value to the local team but also to the E.solutions consulting whole as I develop this Strategy and Innovation office locally. I have already started making significant inroads into the CBA.

I am of two minds. First, I do not wish to leave E.planning in a lurch. My sense is that the practice while lacking in experienced (in the D4S sense) people is fully staffed and literally waiting for engagements. Therefore, my concerns seem to be assuaged. I have discussed with Dan my personal desire, on several occasions, to go back international and this is simply an extension of those discussions. I have also had the same type of discussions with Jim Pauli (before Australia became an opportunity) on multiple points. This opportunity is a natural conclusion to those long-term desires.

Second, professionally this opportunity appears to offer potential that is basically unmatched in my current role and functions in the U.S. My current roles in Australia have clearly crossed into Principal Consultant areas and the future only looks more promising with each challenge that presents itself.

I have one immediate concern which would be ongoing into the future; that is my performance evaluations and job advancements. I am afraid of the out-of-sight out-of-mind syndrome. This year (Jan 2001) I feel justified in asking that I receive a salary increase to the mid-range of the Managing Consultant scale.

28 The applicant received one positive response I am aware of. That was from Mr Nigel Lee whose position at the time in the first respondent's corporate structure is not clear to me. Mr Lee responded to the applicant by email on 27 October 2000 in which he said, inter alia:

1. I (and Mark) will welcome the chance to involve you in the growing of the consulting business within the Asia Pacific region.

2. Notwithstanding the current focus on the CBA, you have my commitment that if you choose a longer term arrangement I will ensure that you have the opportunity to contribute to the success of the wider Asia Pacific e.consulting organisation.

29 On any view, that response from Mr Lee was certainly positive as far as giving the applicant the view that, whatever may happen within the CBA contract, there were other IT consulting opportunities within the global structure of EDS in the wider Asia Pacific region.

30 The above exchange of emails highlights, in my view, the applicant's belief as to his long term expatriate assignment. It was I believe, always the applicant's view, far from being insistent that he remain in the particular position within the CBA contract, he was willing and enthusiastic to look at other positions within the Asia Pacific region.

31 Indeed, I would go so far as to say that he viewed the CBA contract as but a stepping stone to wider career opportunities as an expatriate in the Asia Pacific region. That aspect aside, I believe the applicant did take comfort from his perception as to the long term nature of the first respondent's contract with the CBA. That is why I believe the applicant took the view he did as to the condition in his expatriate assignment 'that EDS, in its sole discretion, may change the duration of the assignment at any time'. He viewed that condition in a relatively narrow light. In short, he did not question that condition when he signed his acknowledgement. In his evidence, he stated that even though the meaning of that condition is very clear, implicit to him was that the respondents would not act 'capriciously' in exercising the sole discretion they had to change the duration of his expatriate assignment at any time. The applicant took the view that there would always be identifiable reasons, particularly going to his performance, that may well precipitate EDS and in this case, the first respondent, exercising its sole discretion in relation to the expatriate assignment. He never shared his view of that condition with either Mr Joseph or Mr Alder. He took that view, he said, because he formed the belief as a result of discussions, both with Mr Joseph and to a greater extent Mr Alder, that the contract as between the first respondent and the CBA was a long term one. I also believe the applicant took the view he did because of his belief in his ability to open up wider career opportunities for himself within his expatriate assignment beyond the CBA contract.

32 The actions of Mr Alder in supporting the applicant's request for a change in his expatriate assignment from short term to long term supported the applicant's belief as to the long term stability of the CBA account. Also, there is no evidence before me that anything was said to the applicant, either by Mr Joseph or Mr Alder that would have caused him to have anything other than that view.

33 Mr Joseph gave evidence he had indicated to Mr Alder that, in approving the change of the applicant's expatriate assignment to two years, he (the applicant) should be advised to continue to think of it as a short term six month expatriate assignment and the only reason that he (Mr Joseph) approved the expatriate assignment being extended for two years was to give the first respondent 'flexibility' should circumstances require the applicant's expatriate assignment to be extended. In such circumstances, there would be no need to redo the paperwork, so to speak, in order to have it extended from the initial six months to one of two years. Mr Joseph gave his evidence after Mr Alder in this matter. Mr Alder was therefore unable to be questioned about his recollection as to such a comment or suggestion from Mr Joseph that he (Mr Alder) should still put a 'fence' of six months around the applicant's expatriate assignment rather than the two years as formally approved and agreed upon.

34 I do not accept Mr Joseph did give a direction in such relatively explicit terms to Mr Alder. I believe if he had done so, there would have been, as the evidence suggests, some evidence to that effect in the form of at least an email verifying Mr Joseph's view about the applicant's expatriate assignment being circumscribed in that way. To suggest that he said it, with no supporting evidence of that fact, suggests to me that it was never raised in any formal sense as between Mr Joseph and Mr Alder given the propensity of all concerned in this matter to send emails to each other on every conceivable issue. It was an important matter that impacted on the respondents and even more so on the applicant. At the very least, the first respondent should have explicitly told the applicant if they were going to fundamentally change his expectation of the duration of his expatriate assignment, particularly given that approval had been given for two years.

35 If Mr Joseph did make such an in principle decision, I am satisfied that he did not convey it to Mr Alder in the terms he suggested because I am satisfied, having heard the evidence of Mr Alder he would, in turn, have conveyed it to the applicant.

36 From the outset, the applicant, by all accounts, applied himself to the task assigned to him by the first respondent within the CBA account. Nevertheless, his willingness and enthusiasm to spread his wings beyond the CBA account became further evident early in April 2001 when, on 4 April, he sent the following email to Mr Joseph:

Dave,

Thank you so much for taking time to meet with me and for your insightful feedback on the account perceptions; I am address (sic) the communication issues with full vigour. One issue that we did not cover in our meeting is timing. I am a single parent until August 2001. I would be available to travel after that time. I met with Nigel Lee yesterday to discuss consulting on the CBA and we digressed into my plans in Asia. We discussed our meeting yesterday, my impression that you were favourably disposed to move me into a CE role as an appropriate role comes open, you seemed appreciative that someone with leadership skills was available and willing to actively pursue opportunities, and how one of your concerns was my expat package. With that in mind we brainstormed several options (CE and Consulting) that I would like to share as idea generators.

· Move me into a CE role with split responsibilities to also develop the consulting practice, a natural thing for me

· Move into an executive leadership role in the consulting practice

· Split my expat costs with the CBA account and give me dual responsibilities as a CE in a developing area while managing the innovation at CBA

· Switch the current Asia CE to Japan and Korea and make me responsible for his current area

· Promote me to CE and get me in the correct pay range and it will be easier for me to shift to a local package (I am currently 48-72% below market salary; despite being rated Tier 1 on the last review and rating cycle, an issue you will probably be addressing shortly regardless of how this conversation progresses)

· If I invest in Australia (home or farm) I could lower the Australian tax burden and reduce the tax equalisation issue which would make it easier to accept a local package.

The message is: with a small group of experienced people we can probably create options that produce a real win-win opportunity here.

Warm regards,

37 Mr Joseph responded promptly to that email on 5 April 2001. He was far less enthusiastic than the applicant in his response, which was as follows:

Russell .... I think we did discuss timing 'milestones' and to clarify, as you may have leapt to some conclusions here that are as yet, only potential! (not to say that I am ruling out anything), however:

· I am favourable to considering you for a broader role in A/P, one possibility is that when the business in Japan/Korea is of a sufficient size e.g. say US$5 million - US$10 million the intention is to appoint a 'CE' leader...

· The CE job code is a highly protected one - only sanctioned by the (indecipherable) and we do not have any ability to appoint anybody in the role this year

· I think the CBA account covers all your costs at present and I am not sure we can claim victory on S and I such that you are in a position to move onto other's roles (are we?)... not really across this alignment with Nigel's team?

· Thanks for flagging the salary concerns, have you raised with David Chrisman who has overall 'E' responsibility for our 'E' team at CBA?

· Not sure if you can invest in a home as an expat

Russ, please do not take the above negatively. I am indeed looking for folks willing and able to take responsibility.... there are some process issues etc to be considered in all this. I do not have any questions regarding your performance on innovation with CBA etc however as I indicated during our discussion, perception is all and, although Yves and Neil would rate you highly the folks 'grading our score card' are Mulcahy, Scrimshaw and Dan as an 'influencer...'. I reiterate that I will ensure your interest is shared with the eventual permanent replacement for Tony and in the meantime I am certainly keen to progress opportunities that support our business in line with the above 'charter' - if we need to speak further by all means call me or set up another time to talk.

Regards,

Dave

38 Notwithstanding the less than enthusiastic response received from Mr Joseph, there is evidently some support from Mr Joseph at that time of the possibility of the applicant being considered for other positions within the first respondent beyond the CBA contract.

39 Two things need to be borne in mind in relation to the above exchange of emails that took place in early April 2001. The first is that according to Mr Joseph's evidence, in March 2001 it had become necessary for him 'to review the presence of expatriates working on the CBA account.' This was for the two-fold reasons that he gave - the substantial expense of expatriates on that account and ongoing niggling dissatisfaction being expressed by the CBA to the first respondent as to the level of expertise being provided by the first respondent to the CBA account. There is no mention in his email to the applicant in April of that fact. The applicant certainly notes in his email that in the discussions he had with Mr Joseph that he (Mr Joseph) did raise as one of his concerns, the applicant's 'expat package'. What that meant was never explained. Mr Joseph did caution the applicant about a number of his enthusiastic perceptions both as to his performance and proposed options for the future. However, at the same time he left the door open in a favourable way for the applicant in that he stated his willingness at some future time to consider the applicant 'for a broader role in A/P'. I interpret A/P (having regard to the way in which it is used both in this email and elsewhere) as meaning the Asia Pacific region.

40 If anything, the exchange of emails in April between the applicant and Mr Joseph may well have triggered in Mr Joseph's mind, and others in the first respondent, to come to some definitive conclusion in relation to the role of the applicant as far as his expatriate assignment was concerned. There is evidence before me of an exchange of emails in early May 2001 involving Mr Joseph and other executives within the first respondent seeking clarification as to the applicant's expatriate assignment. For example, in answer to an email sent to Mr Joseph on 9 May asking him to confirm the duration of the applicant's expatriate assignment, Mr Joseph responded the next day in an email addressed to Mr David Chrisman and Mr Mark Alder as follows:

Mark, David .... I believe the answer is that his original agreement was for six months but Mark extended it to two years? The original role was to kick off the strategy in innovation - is this complete, ongoing, into a new phase? I guess I am asking is Russell's role clear, when we met a few weeks back he suggested the S and I was well on track and was exploring next roles. What is your respective understanding and thoughts?

41 There is no evidence before me as to how Mr Alder or Mr Chrisman responded to that request from Mr Joseph but by 16 May, Mr Yves Schellekens was emailing Mr Joseph, Mr Alder and Mr Chrisman as well as a Mr Dan Allison. Mr Schellekens was in the position of Client Executive on the CBA account. He said:

All,

Just talked to Dave Joseph, related to Russell Gilger. We came to the conclusion that the best way to come to a common understanding on how to move forward is to have a conference call with the five of us, as we are all stakeholders. Purpose is to clearly scope the issue, explore the different options/solutions and then agree with the implementation.

People are our greatest asset!

I will have my admin set this up asap.

Yves

42 As a result of that email, a discussion was held on or about 22 May 2001 with the five management representatives of the first respondent resulting in a decision to talk with the applicant 'asap'. As a consequence of that discussion, a script was drafted by Mr Schellekens, agreed upon and a decision taken that Mr Schellekens and Mr Joseph would talk with the applicant on Thursday, 24 May 2001. As Mr Schellekens stated in his email:

We agreed in our call today that a discussion with Russell needs to take place asap.

Dave Joseph and myself will be doing it this week, probably Thursday after VRB.

This discussion will be based on a script we agreed today in our call, and we would like your endorsement on it as well or possible comments/additions.

This to avoid when Russell comes to see you afterwards that there is a different story.

This is a delicate manner we want all to handle professionally, in all it's aspects.

SCRIPT

= account has to look at ways to reduce our overall cost in order to make our numbers this year - expats are a big cost and are part of the exercise

= Greg Trosper is coming, so there will be duplication of job; S&I did a good job so far and it needs to continue but expectations of the Bank are increasing

= you have recently expressed with different people the desire to look into moving in another role and stay in AP for undetermined period

= there is today no evidence that you can cover and meet expectations of Mulcahy, Scrimshaw and other Execs of the Bank

= unfavourable scores in the biweekly evaluation have been received from the Bank over the last 6 to 8 weeks.

= we need to find a solution with you, that addresses EDS needs and your personal needs/situation, eg solution for your children planned to join you in July; failing to find a solution will mean that you will be asked to repatriate early to US and that we will not fund the travel of your children to Sydney.

Dave, David, Mark,

Feel free to add/amend the script.

Timeline is cob tomorrow.

43 As agreed, a meeting was held with the applicant on 24 May 2001. At that meeting, apart from the applicant, Mr Joseph and Mr Schellekens were present. According to Mr Joseph, he and Mr Schellekens advised the applicant in the terms as set out in the email of 22 May that Mr Schellekens had drafted and sent to Mr Joseph, amongst others. The applicant disputes the tenor of the conversation Mr Joseph gave evidence about. However, I am satisfied, given as to what had been agreed between the representatives of the first respondent, they would have and did stick largely to the script they had already agreed upon. The applicant said Mr Schellekens advised him the first respondent was 'reviewing' his expatriate assignment. According to the applicant, when Mr Schellekens said that, in his words:

I was not overly concerned because it was common for EDS to review expatriate assignments because of their expense.

44 The applicant said he was given an assurance by Mr Schellekens that the review to be undertaken was not related to his performance in the assignment he was currently undertaking. As well, he said, Mr Schellekens requested the applicant look at local positions and report back to Mr Schellekens and Mr Joseph upon a regular basis. Mr Joseph suggested that the applicant contact Jenny Werner, the Human Resources Manager for the first respondent, located in Sydney, in order to assist in that process.

45 The applicant's perception as to what he had been told at that meeting is expressed as follows:

I left the meeting with the impression that EDS was doing an informal (formal decisions required written notification) review of expatriate assignments in an effort to reduce expenses. I had frequently voiced a desire to remain in Asia Pacific. This conversation would come up every time we had discussions about my long term business focus. I shared that with all the practice leaders, Mark Alder, David Chrisman, Yves Schellekens, Dave Joseph, and all my team to name a few and I felt that EDS was trying to move me to a local position based on that predilection. Never was my job security a consideration; the CBA contract remained in place and I was getting excellent performance reviews.

46 On one view, the applicant's perceptions, as he described it, is somewhat at odds with what he then commenced to do. In other words, he said that he was not in any way concerned about the continuance of his expatriate assignment and yet that statement of belief is belied by both the suggestion that he look for 'a local position' and also to contact Ms Werner in the Human Resources Department. Certainly the applicant must, in my view, have started to consider that his expatriate assignment, as it then was, may well be running into some difficulties that may have implications for his position. That much is borne out, in my view, by the flurry of email activity that followed after the meeting of 24 May 2001. To start with, the applicant sent an email to Mr Schellekens on 27 May 2001 in which he raises several questions in which, he says, 'the answers will help me to understand where I need to focus and improve in the future'. Those questions were:

· What will happen to the people in the SIO team? Will they continue to function under Grieg or be given other opportunities?

· What was the event that occurred 'in the last' few days that precipitated the re-evaluation of the SIO position?

· Grieg (and Dan A) has known he was coming to Australia for some time now, what was the envisioned model for us to work together?

· Does the account management team feel they fairly communicated expectations and the 'changing' political environment in the Bank (specific to innovation) to the Director, SIO?

Reference to SIO refers to the Strategy and Innovation Office where the applicant was working as part of the first respondent's contract with the CBA.

47 Whether Mr Schellekens ever responded to those questions is not known and he was not called to give evidence. On the same day as the applicant emailed Mr Schellekens in the above terms he sent an email to Mr Joseph which said, significantly, as follows:

Dave,

I have been in touch with Jenny. She has my detailed résumé and we will get together early this week to start the process of identifying a new position and developing specific one page résumés. She was very empathic and seemed very willing to do whatever to takes to derive the best possible outcome for the situation.

My wife informs me that the house, furniture and cars have all been sold and our other goods have been shipped. This raises several questions regarding the long term expat agreement. However, I think it best to see what the options are and then we can address the issues that are still relevant.

I am speaking with KPMG on Monday regarding the implications of taking a local package in Australia. Their initial comment was: 'the implications are major'. We will see.

From discussions with my wife - the job responsibilities and pay are the most important issues in determining the next position. We would prefer to stay international. I will be working with Jenny to further scope the first three issues.

I am moving forward.

Action, urgency, and excellence.

Russ

48 On any view, it seems that as of 27 May 2001, the applicant was notifying the first respondent of his actions to date and, by all accounts, still believed that there were other employment 'options' within the first respondent or elsewhere in the Asia Pacific region with EDS, that he was pursuing them and that his preference was to remain on an expatriate assignment. As the emails of 27 May indicate, he seemed by this stage to recognise that there may well be some changes to his current employment position. Despite that, I am satisfied that at this point in time, the applicant believed there would be alternative and ongoing employment opportunities of an expatriate assignment nature with the first respondent or with an EDS corporate entity in the Asia Pacific region. I believe he had that view because there was no issue as to his performance and, in early April, Mr Joseph had been supportive of favourably considering him 'for a broader role in A/P'. As well, in the discussion with Mr Schellekens and Mr Joseph on 24 May, they indicated there was a 'need to find a solution with you'. All in all, the applicant was entitled to believe that while his position with the CBA may not continue, his expatriate assignment was not in jeopardy.

49 The applicant's efforts to secure an alternative position were always on the basis of wanting to maintain his expatriate assignment and conditions. On that point, the applicant was cautioned about his insistence when he stated that he wished to remain as an expatriate having regard to both the salary and career opportunities that he wanted and perceived for himself and that he believed an expatriate assignment would facilitate. In other words, in his search for alternative career opportunities in Australia with the first respondent, he did not wish to go 'local' in the true sense of the word. That would have meant him converting to local rates and conditions of employment which would have resulted in a substantially reduced overall salary package. For example, on Friday 1 June, the applicant emailed Mr Joseph, inter alia, in the following terms:

I have independently contacted Richard Chaplin, Nigel Lee, Leisa Hart, Sheelagh Whittaker, and ATK. There is no lack of interest or opportunity if I go 'local', However, on further reflection of the situation, I would really prefer to remain an expat and focus my search on the type of high level positions in the region typically staffed by expats. That being said should we identify the right job, level of responsibility and pay, I would still entertain the local option.

Cheers

50 What that email conveyed and I believe was always the applicant's position was that his preference was to remain on an expatriate assignment package. If he was to contemplate going 'local' it would only be on the basis of identifying a position acceptable to the applicant at the 'right pay'. As I understand his evidence, together with that contained in [31] of his affidavit sworn 15 April 2003, the applicant's preparedness to consider a local position was on the basis of it being an enhanced local remuneration package incorporating in monetary terms many of the benefits he enjoyed under his expatriate package. In coming to that conclusion I should add I do not find such a view surprising. If I gained any impression of the applicant's view as to his work value it was that he had held it in high regard.

51 Overall, during the month of June, the applicant continued to press for expatriate career opportunities within Australia and the Asia Pacific region with EDS entities. Even though he identified possible positions available and acceptable to him, none of those positions ever came to fruition as far as converting to an offer in a substantive sense. For example, on 30 June 2001, the applicant sent an email to a number of senior management executives of the first respondent, including Mr Joseph, in which he identified a position which he identified as Practice Rep in North Asia, in which he said, amongst other things:

Ronan and I had a discussion about the potential position in North Asia to represent and build the four practices. I am quite enamoured of the proposition; I can see the real and immediate business need, there is a professional challenge, and I will remain in Asia Pacific. Thank you for considering me for the position.

52 The applicant then went on to indicate what he believed should be the appropriate way to deal with what he believed as an identifiable position for him. He suggested that his current expatriate package be transferred to Hong Kong, what his salary in his job code should be and what the advantages of those options were for EDS globally. He identified those as:

· Having a qualified, successful, and determined resource quickly filling the position

· Timely on-the-ground representation in North Asia

· Ability to focus on several on-going strategic business issues that will probably be lost without representation

· New opportunities for revenue and profit generation

· Relocation costs have already been factored into e.Solutions 2001 budget; I will be relocated to the US without a AP position

· Significant reduction in administrative paperwork and processing time

· A predefined end date of Oct 2002 to re-evaluate the position, me in the position, and the total package.

53 The response he received from Mr Joseph on 30 June was anything other than enthusiastic, in the following terms:

Russ

....many assumptions in your email which I feel compelled to counsel you on;

As explained any role would be on the basis of a local package - your continued push for continuance of current expat package and claims for specific salary are inappropriate and if anything diminish your chances!

Your 'advantages' assumptions are also incorrect - both issues of how the relocation budget is accounted for and the amount of administration and processing are misinformed.

Regards,

Dave

For reasons never properly explained, nothing came of that position.

54 While steps were under way by early June to look for alternative employment and career opportunities, preferably as an expatriate, the issue as to the applicant's wife and two children joining him in Australia came up. This much is evident from the email sent by the applicant to Mr Joseph on 13 June 2001 as follows:

Dave,

Please approve the RFT for my family and for the approval for Jetset by 15 June 01 for snail mail delivery of tickets to the US.

I have spoken with Jetset and they do not yet have the approval to issue tickets for my wife and two children due to fly to Australia on 7 July 01. I faxed the form to your office in early May. Please let me know if you have not received it; I will re-submit.

The current status of my expat agreement, the ninth month family separation in support of EDS, the uncertain future, and the one-time cost all seem to indicate this is the prudent, sensible and right thing to do.

Cheers,

Russ

55 That email put the applicant's expatriate assignment squarely on the table. It beggars belief that Mr Joseph, when confronted with this email, did not take immediate steps to immediately speak to the applicant and put him on clear and explicit notice that his expatriate assignment in Australia was possibly coming to an end and, far from bringing his wife and two remaining children to Australia, there was every expectation on the part of the first respondent that the applicant would be expected to return to the United States in the not too distant future as part of the EDS global expatriate assignment policies and procedures. This email was a clear signal to the first respondent to do something and to do it quickly if only to delay such a step while the applicant's expatriate assignment was confronted with the possibility of ending. However, rather astoundingly, Mr Joseph approved the applicant's request and on 7 July 2001 the applicant's wife and remaining two children moved to Australia.

56 If anything, the approval by Mr Joseph to allow the applicant's wife and remaining children to travel to Australia in July 2001 would have sent a clear and unmistakeable signal to the applicant. That is, notwithstanding that his particular assignment with the CBA might well be coming to an end, there was still an intention on behalf of the first respondent to continue to employ him on an expatriate assignment located in Australia or, if not, somewhere else in the Asia Pacific region. It is hard to see what other perception would have been created in the applicant's mind by the decision to allow him to move the remainder of his family to live in Australia with all the implications that represented.

57 I believe the applicant did have, and he was entitled to have, a positive perception at that time about his belief as to the continuation of his expatriate assignment. This would have been further reinforced by an email received by him from Mr Schellekens on 14 June 2001 relating to: status jobsearch - Russ Update in the following terms:

Just a quick summary of agreed actions in our call today:

- family can come down; travel will be signed off

- RG to continue to look for opportunities in the broadest sense, realizing Expat positions are scarce to non-existent

- RG to look deeper in existing real opportunity(ies), eg Nigel Lee

- RG to consider assessment on strengths, weaknesses etc ... as discussed, with purpose to help you in jobsearch; to discuss with HR for guidance

- next checkpoint mid July, with clear expectation that search new position would be well advanced/finalized

- end of July, agreement on early end date of expat assignment will be reached and formally communicated

- RG to continue current job and role-business as usual

Let me know if I missed anything.

Yves

58 Not surprisingly, given all of the above, the applicant continued to enthusiastically explore alternative expatriate employment opportunities within the EDS corporate entities in Australia and the Asia Pacific. For example, on 29 June 2001, he sent to Mr Joseph and Mr Schellekens a job search update. In that email, the applicant sets out in some detail certain job search options available and where he was at in following up those options. Further, on 30 June 2001, the applicant sent another email to Mr Joseph and other management executives, seemingly of the first respondent, dealing with the 'potential position in North Asia' I have earlier referred to.

59 Sometime after June 2001, the applicant took matters into his own hands when he saw fit to approach Mr Tom Kielty, who was the Enterprise Client Executive for the CBA account and, according to the applicant, in a superior management position to Mr Schellekens. According to the evidence of the applicant, as a result of his phone call to Mr Kielty sometime after June 2001, he was left with the view that his expatriate assignment was not in immediate danger of being terminated. According to the applicant, Mr Kielty said words to the effect that he would 'research the position and get back to the applicant within a month and let him know'. It would seem that that conversation gave some comfort to the applicant and I accept that it did. I would have to say that I am not entirely sure why, given that he was not given any unequivocal assurance as to his expatriate assignment.

60 Mr Kielty did call the applicant on or about 9 August 2001. In that call, according to the applicant, he said words to the following effect:

Kielty: Russell there is a position for you on the account. Your expat status is not an issue. It would be unfair to terminate your contract while I have other expatriates on the account.

Me: Thanks Tom.

61 Armed with what he saw as an assurance as to the continuity of his expatriate assignment from a senior executive of the first respondent, the applicant sent an email to Mr Joseph and Mr Schellekens on 15 August in which he said relevantly:

After our teleconference on 9 Aug, Tom Kielty called me from either the aircraft or New York. He had, in an earlier meeting circa 6 July, committed to conduct his analysis of me and my value add potential in his new envisioned organisation, and determine if I would have a future role. This call was to close that action item.

Tom said that he had completed his analysis, there is a role for me (per your description of the situation) in the business 'driving initiatives forward', and that he hoped to make organizational changes in 3-4 weeks. I broached the expat issue and he was surprised stating that the issue was 'not even on my agenda' and wondered out loud how 'I could require you to give up your status and still have other expats on the business'. He did go on to say that the costs associated with expats were a different issue but seemed to (my interpretation) minimize them as manageable in light of contractual and ethical obligations. He may not have a full EDS view of the issues yet. The next step is, as I think we agreed, to wait for the reorganization, clarification of my new roles and responsibilities, and then determine where we go.

62 Mr Joseph's response of the same date was as follows:

Russell...Yep I think you are correct Tom does not yet have a full view of the issues and you should assume the role will be on a local basis. Also to reinforce the dialogue around salary ranges, McCain's original edict has NOT been sanctioned and thus it is not appropriate to share ranges, especially when the role has not been determined. I have not been contacted regarding your nomination to the EDS Fellows program, which x-LOB leaders have provided input?...

regards, Dave

63 In any event, whatever position Mr Kielty held and whatever view Mr Kielty may well have expressed to the applicant in July or August of 2001, by September 2001, Mr Kielty was certainly party to discussions in which the decision was made to repatriate the applicant. That much is clear from a series of emails that passed between Mr Joseph, Mr Kielty and Mr Schellekens, with copies to Ms Werner, dated 18 September 2001. Mr Kielty's email of 18 September 2001 makes his position in relation to the applicant clear. He asks of Mr Joseph:

Dave: Has Russell decided to accept a position as a local? Although I and others believe that he could add value on project engagements, I am not in a position to provide him an assignment that could easily be supported by local talent. Re: projects, I will talk with Chrisman, Chaplin, Kershaw and the account leaders today. Without Russell's immediate agreement on the local question, there's nothing to talk about. Let me know.

Tom

64 Mr Joseph's response of the same day was:

Tom...Yves and I have acted as 'joint managers' with respect to Russell and although he did explore various other roles I do not believe he formally accepted a 'local' role and at this stage I am not aware of any actual openings he has accepted on a local basis. Unless Yves or I hear anything further about openings today I will work with LCM on next steps ie sounds as if this is repatriation....

regards, Dave

65 Ultimately, the critical email is probably that of 25 September 2001 in which Mr Chrisman, the Client Executive and Relationship Director with the CBA account for the first respondent, said as follows:

As you are aware Tom Kielty is in the process of transforming the EDS team on the Commonwealth Bank of Australia.

As a result of my planning sessions with Tom to reduce costs and increase revenue, the following actions will be taking place;

1. Both Jim Johnson and Russell Gilger will be completing their expat assignments at the end of October 2001 with tentative plans to repatriate.

66 On 24 September 2001, on the applicant's own evidence, Mr Joseph advised him that his expatriate assignment was being terminated, effective from the last day of October 2001. On that day, Mr Joseph directed the applicant to 'wrap up all the business you are doing on the account by the middle of October and relocate to the US.' It was at that point that Mr Joseph produced the relevant pre-prepared document and the applicant signed the document. According to the applicant, this discussion with Mr Joseph and the statement by him that his expatriate assignment was being terminated, was 'the first time I understood the nature of the previous conversations. They intended to terminate the contract for no apparent reason.'

67 It is difficult to accept the bald assertion by the applicant that it was only in September 2001 that he became aware of the intention of the first respondent to terminate his expatriate assignment. True it is, as I understand the evidence, this was the first time that the words 'terminating the expatriate assignment' may have been used but it was not the first time that the issue of the possibility of the applicant repatriating to the United States had been flagged. This is because in the meeting with Mr Joseph and Mr Schellekens on 24 May 2001, I believe the applicant was put on notice that his expatriate assignment was being reviewed, he (the applicant) was being moved from the CBA account and that 'failing to find a solution will mean that you will be asked to repatriate early to the US and that we will not fund the travel of your children to Sydney.'

68 By the end of May 2001, the applicant was aware his expatriate assignment was in jeopardy. That much is clear by the evidence of Mr Alder and the email prepared by him on 29 May 2001.

69 Mr Alder believed, very early after 24 May, that all was not being done that could be done to assist the applicant in alternative employment opportunities. On 29 May 2001, Mr Alder drafted an email to Mr Troy Todd, the global head of human resources for EDS. That email said as follows:

Troy,

As distance prevents me doing this in person please consider this an 'open door' e-mail...

I feel compelled to write to you about what I feel is unacceptable treatment of one of our expats - Russell Gilger.

Russell Gilger was brought out to Australia in response to the 'critical' client satisfaction issues we faced in e.solutions last year. He initially was to come out on a 6 month assignment but this was then changed to a 2 year assignment by mutual agreement - initiated by me but all fully approved through the normal management chain. Russell now works for Yves Schellekens and David Chrisman.

His family, including 4 children, was in the process of coming out - some have already been here for some months - and has made considerable sacrifices in being split across the US and Australia as they tried to work around school years etc.

Russell has performed his duties well since he arrived and there has not been any criticism of his work that has been provided to him. His area of Strategy and Innovation has a way to go to be successful but he has done all the things asked of him and more.

As Russell's original manager who brought him out to Australia, Russell called me to tell me he had just been told by Dave Joseph and Yves Schellekens that he had 45 days to find another assignment of return home - they were operating under direction from Dan Allison and David Chrisman - apparently as a result of the decision to bring Greg Trosper out to CBA - making the cost of ex-pats too high.

This leaves Russell and his family in complete disarray and facing the prospect of another major change.

I am dismayed to see EDS treat any employee and their family this way. I am sure our 'contract' with Russell allows us to treat him this way but that does not make it right.

To me it seems that if the CBA Account no longer needs Russell at CBA it is up to EDSA to find a way to use him - not just discard him and make it all his problem.

If the real issue is cost then there are a number of ex-pats on the CBA who are significantly more expensive and are yet to demonstrate significant value - I suspect that Russell has been singled out because he does not have the EDS network of some.

Ex-pats are valuable (and expensive) resources - they often make considerable personal and family sacrifices in support of the company and they deserve better treatment.

If you feel it is appropriate to look into the above.

Regards

Mark Alder

70 Before sending it, Mr Alder sent it to the applicant asking for his comment and his permission to send it to Mr Todd. In doing so, he said as follows to the applicant:

Russ, I feel strongly about the way you have been treated and would like to send the following email to Troy Todd - I don't think any point of doing to anyone in the region (sic) ... are you happy for me to send?

71 The next day, that is, 30 May 2001, the applicant responded in the following terms:

Mark,

Thanks for the sentiment and taking the time to craft this note.

I would prefer you delay sending this, if at all, pending a significant downturn in the process. I am now viewing this as a positive opportunity to move to other responsibilities in the region. Indications are that Dave Joseph and Jenni Werner are doing their best to assist me finding a new position that will fill my career progress objectives. Should this prove false or things get ugly (jobs, timing, contract changes, etc) I may ask you to send the note.

Warm thanks

72 The email was never sent and there is no evidence to suggest that the applicant ever asked Mr Alder to send the email to Mr Todd. Nevertheless, the applicant's response to Mr Alder of 30 May asking him to hold back on that email to Mr Todd is reflective of what I believe was the true position as far as the applicant was concerned. To start with, on 24 May 2001 he was certainly on notice that his expatriate assignment was in jeopardy. Nevertheless, he was, on any view, enthusiastically optimistic that what had occurred in relation to his expatriate assignment was nothing more than an opportunity to move in another direction with his career but remaining as an expatriate in the Australia/Asia Pacific region with the first respondent or another EDS entity. He also believed at that time Mr Joseph and Ms Werner were doing and would continue to do all that could be done to ensure that that objective was reached. He believed that because Mr Joseph had indicated to him at the meeting of 24 May 2001 that the first respondent would do all it could to assist him. Mr Joseph also told him to liaise with Ms Werner in Human Relations for assistance.

73 Given the position that the applicant was confronted with on 24 May 2001, it is worthwhile to reflect on what steps the first respondent took to facilitate the applicant's desire to remain in Australia or the Asia Pacific region on an expatriate assignment package.

74 To start with, Mr Joseph sent out an email on 25 June 2001 to what has been described as his distribution network, enclosing the applicant's résumé. Little, if anything, seems to have come of that.

75 I have earlier commented on the fact that part of the applicant's case as to alleged unfairness is that the respondents did very little, if anything, to positively assist him to find alternative employment opportunities within the context of his expatriate assignment. Not only does he say they did very little, but the applicant also contends that it was part of his expectation, being an employee on an expatriate assignment, the respondents had an overall obligation, both as home and host country managers, to ensure appropriate career development planning took place to ensure his expatriate assignment became a relevant part of the development of his career progression. Further, as part of that, it was part of the obligation of the home and host country managers to maintain plans for an expatriate employee's repatriation and to develop what was described in the respondent's policy and procedures as 'an effective development plan' and that 'objectives and plans for the next assignment should be identified regardless of return date'.

76 One of the major complaints of the applicant in relation to his allegation of unfairness at the hand of the respondents is that once the in principle decision had been made by the first respondent to bring the applicant's expatriate assignment to an end, certain obligations arose on the part of the two respondents and that those obligations were never met. Those obligations were referred to as the home and host country responsibility guidelines for repatriation. Those responsibilities were as follows:

Host Country Leader Responsibilities

Home Country Leader Responsibilities

· Determining when the expatriate assignment will be completed

· Notifying home country leader that the employee is available for placement in the home country organisation

· Designating an individual within the organisation to assist with locating a position in line with the employee's career goals

· Using tools provided by Corporate Staffing (U.S.) or appropriate human resource area (outside the U.S.) for the placement process

· Informing the host country leader of the placement status

Incurring expenses* for:

· Shipping, transfer allowance and airfare

· Repatriation counselling (if applicable)

· Temporary living, home rental assistance and storage for 60 days

· Foreign service premium plus all tax liabilities related to the assignment which can continue for up to four years

· Compensation expenses for up to 60 days after assignment has been completed (or until the actual date of transfer to a new position if less than 60 days)

· Transferring employee to home country organisation if no position has been located after 60 days

* Unless home country manager retains direct responsibility and cost for employees during an international assignment

· Accepting employee in a home country responsibility centre 60 days after end of assignment

· Officially notifying employee that they have 60 days to obtain a permanent position

· Incurring expenses after transfer for:

- Compensation and benefits for the 60-day notice period

- Storage, temporary living and home rental assistance for 60 days or longer if agreed by home country manager

· At the end of the 60-day period or a total of 120 days after the completion of the international assignment either:

- Transferring the employee to a new position

- Or working with International Assignments to determine appropriate action

77 In addition to the above respective responsibilities of the two respondents, the EDS global deployment policy also addressed the question of repatriation responsibilities, found throughout the policy, in the following terms:

(i) Discuss Repatriation Options

The home and host country managers will maintain plans for repatriation and will ensure that there is an effective development plan for you. Objectives and plans for your next assignment should be identified regardless of return date (for example size and scope of project, region, and position desired).

Early in the international assignment, a replacement plan should be identified for you when the assignment ends. You should plan how you will coach and mentor your replacement to transfer knowledge and skills.

(ii) Executive Repatriation Career Plan

Both the home and host country managers have responsibility for the placement of the repatriating employee. The home country manager and host country manager should work together to oversee the repatriation of the employee. The return position should ensure competencies gained during the international assignment are leveraged.

(iii) Repatriation

The home country organisation is responsible for employing the expatriate after the assignment has ended. An expatriate assignment is a financial investment in an individual.

78 Although it was said by counsel for the respondents that the EDS policy and procedures in relation to expatriate assignments were guidelines only, it is hard to accept that any employee of EDS who is offered and accepts an expatriate assignment is not entitled to have regard to the EDS global policy on such a matter when coming to a view about whether to accept the offer or not and what the conditions are. This would be so particularly given that the letter of acknowledgement signed by the applicant in accepting his expatriate assignment stated that the assignment 'will be subject to the terms and conditions of the EDS Global Deployment Policy and the specific terms as provided herein'. Accordingly, the applicant is entitled, in my view, to point to the respective responsibilities of the home and host country in an expatriate assignment as set out in that Policy as an indication of what he understood would be undertaken on his behalf when his expatriate assignment was brought to an end.

79 By reference to such a policy it is said that a plan should have been in place in relation to the applicant concerning his repatriation. If the plan was meant to be formally documented then that was certainly not the case. There does appear to have been numerous discussions between the applicant and various management people, if the plethora of emails is any indication, about how he perceived his role and how his role was perceived in his expatriate assignment in Australia. This was particularly so in relation to how the applicant perceived the expatriate assignment assisted his career progression opportunities within the corporate structure of the respondents. In turn, he received feedback from time to time, some positive, some not so positive, about how his expectations were perceived. It may be that such an exchange of correspondence and obviously face to face discussions between the parties may well be seen in the context of career planning. Beyond that, the evidence does not reveal the respondents had a definitive plan in place in relation to the applicant's future career assignments within their organisation, particularly relating to his anticipated repatriation.

80 As far as assisting the applicant, the strong inference is that as early as June 2001, Mr Joseph in particular had already come to the view that the most sensible outcome for the applicant was that he should be repatriated to the United States. My reason for that conclusion is to be found in an email that Mr Joseph sent on 26 June to Mr Ian Kemp and Mr John Heger. That email was in response to an inquiry, particularly from Mr Kemp, following Mr Joseph's circulation of the applicant's résumé, asking people to let the applicant know if they had 'an opening that might suit' the applicant and that the first respondent was 'striving to explore all opportunities' in relation to the applicant concerning alternative employment opportunities within the context of his expatriate assignment. Mr Heger was, at that time, an EDS Executive Director operating on a contract with Telstra. He obviously saw the applicant's résumé and he sent an email to Mr Kemp asking about the applicant in the following brief terms:

Re Russell Gilger

Is he on an expat or local package? Why is he dropping off the CBA account?

Thanks

John Heger

81 Mr Kemp responded to that email on 26 June indicating that he did not know anything about the applicant or the circumstances of his move. However, Mr Joseph responded to Mr Heger and to Mr Kemp on 26 June in the following terms:

John, Ian ...CONFIDENTIAL - he is currently on an Expat assignment; late last year we bought (sic) out several folks from the US to build our credibility with the CBA in the 'E' Online systems development space and to demonstrate 'creativity'....

Russell has been part of (Yves Schellekens) Strategy & Innovation team on the CBA Account and essentially his assignment is being terminated for 2 reasons:

· CBA Account has a significant Unbilled problem and needs to reduce costs - key focus is reducing the #'s of Expats...

· Russell (or anybody else...) has not managed to 'gain a seat at the CBA Exec table...' and a new EDSer is coming from the US with the direct objective of being able to influence the CBA Executive team (so overlap with Russell's and the S&I team...)..

Obvious choice for Russell would be to repatriate back to the US, however he and his family have made a choice to relocate to Australia/A/P (have sold up house etc) and thus are very keen to pursue (local package) opportunities...

regards, Dave

82 If anything, Mr Joseph was really revealing his true feelings in that email, That is, he was not going to do anything to positively assist the applicant and that he had already formed the view that the applicant should return to the United States. There is no suggestion in that email that Mr Joseph felt himself under any particular obligation to assist the applicant but rather that the applicant wished to relocate to the Australia/Asia Pacific region and was wanting to pursue a local package.

83 The applicant's views as to what he saw as a local package have already been commented on earlier in this judgment.

84 As well, on 29 June 2001, Mr Joseph sent an email to Ms Werner and Mr Schellekens in the following terms:

Jenni, Yves...I had the discussion with Russ today 1 on 1 and 'netted out' the below for him:

· Opportunity in E.solutions for a role representing the Practices in A/P North (HK or Singapore) - follow-up dialogue with Ronan suggests this is not an immediate opportunity...

· Opportunity in the Sydney Solutions Centre - follow-up with Richard Chaplin July 4th...

· When he returns from vacation July 23rd we will closeout discussions, either he accepts the above (or in the unlikely event any other role that surfaces...) or we advise his option is repatriation...

regards, Dave

85 Two matters arise in the context of the above emails. One is that Mr Joseph makes it clear what his view was as to the choice confronting the applicant. That was to repatriate to the United States. This was as early as June 2001 and yet it was not until 24 September 2001, some four months later, that Mr Joseph formally terminated the applicant's expatriate assignment. As well, in the intervening period, Mr Joseph approved the cost of bringing the applicant's wife and two children to Australia. More significantly in my view is the second point arising from the email to Mr Heger. Mr Joseph's comment that the applicant had not managed to 'gain a seat at the CBA Exec table', without more, on any fair reading of that, damns the applicant with faint praise. In other words, there is no explanation forthcoming from Mr Joseph as to why that might be so within the context of the CBA account. In other words, that comment of Mr Joseph's raises, on any objective consideration, an adverse slur on the applicant's abilities and performance. Given that Mr Joseph had already indicated to the applicant that the question of his performance was not an issue, it smacks of double standards on Mr Joseph's part to have said that to the applicant while at the same time leaving a question mark hanging over the applicant's abilities such that he could be positively considered for alternative career opportunities as an expatriate within the first respondent in Australia or elsewhere with EDS in the Asia Pacific region.

86 I believe that while representatives of the first respondent were saying they would do all that they could to find alternative opportunities for the applicant, they were making very half hearted and disingenuous attempts to do so. In other words, I believe that while they said one thing, they did another. That much is evident, in my view, by the fact that Mr Joseph's so-called assistance to the applicant consisted of using one of his 'old distribution lists'. In doing so, Mr Joseph said simply:

We are striving to explore all opportunities within the next 2 weeks so please contact Russ if you have an opening that might suit ...

87 In addition to those bare few words Mr Gilger's résumé was attached.

88 On any view, one could hardly say that that above message by Mr Joseph, simply added to one of his old distribution lists was designed to get anybody excited about the capabilities and skills of the applicant. It could hardly be seen as Mr Joseph striving as best as he could to try and relocate the applicant within the corporate structure of the first respondent or any other EDS entity in the Asia Pacific. If Mr Joseph was genuine in his attempts to assist the applicant then it would be reasonably expected that he would have done more than simply send the above email. It would have been expected, in my view, that he would have been in personal touch with his management colleagues throughout the organisation, exalting the skills of the applicant and using every contact at his disposal to speak positively about the applicant and gain the ear of the decision makers about the positive aspects of continuing to utilise the skills of the applicant. Bear in mind that at all times Mr Joseph publicly told the applicant that his performance was never an issue, so personality aside, there was no reason why Mr Joseph should not want to assist the applicant, at least on the face of it, more than he appears to have done, which was superficial at best.

89 The true position of the first respondent to the applicant is reflected in an email sent on 18 September 2001 by Mr Jay Davis to Ms Sue Roberts with a copy to Mr Joseph and Ms Werner. This was in relation to an application made by the applicant in July 2001 to become an EDS Fellow. This required the applicant to gain the support and recommendations of managers, clients and peers. Numerous positive references were provided in support of his application. The application required managers within EDS to submit their reports without providing them to the applicant. In an email dated 8 August 2001, Mr Joseph acknowledged that the applicant had been sponsored by 'some very senior folk in the US'. The report submitted by Mr Michael Lade who was a Vice President of one of the major clients that the applicant worked with in the United States, was very supportive. Mr Schellekens also submitted a recommendation. Mr Joseph conceded in his evidence that if the applicant had obtained the status of Fellow it would certainly have assisted in his redeployment.

90 When enquiries were made to the first respondent on behalf of EDS management as to the applicant's qualities for consideration for the EDS Fellows programme, the response from Mr Jay Davis, President EDS E Solutions Asia Pacific was as follows:

Sue,

Although Russell has nominated himself for this program, based on the extensive feedback I have received from my leadership team, I am asking you to immediately remove his name from the list of candidates. In fact, we have been working on moving him out of our organisation for the last two months. If you require further information, feel free to contact Jenni or Dave Joseph.

Jay Davis

91 Mr Davis was not called to give evidence. Nevertheless, it is abundantly clear the first respondent had done little to assist the applicant despite their protestations to the contrary.

92 Ms Werner, the then Human Resources Manager for the first respondent, also gave evidence as to her efforts to assist the applicant in finding alternative employment opportunities within an expatriate assignment context, both in Australia and the Asia Pacific. Ms Werner's dealings with the applicant commenced in May 2001. She assisted the applicant to edit his résumé for the purposes of circulation within Australia. She also forwarded that résumé to Mr Phil Davidson who was, at that time, the Director of EDS Asia Pacific Leadership and Change Management, asking that he distribute the applicant's résumé throughout his networks in the Asia Pacific. As well, Ms Werner gave evidence, which I accept, that as part of her role she participated in fortnightly e.Solutions conference calls that were held with her peers from around the world within the EDS global corporate structure. Between the period of July to September 2001 she says that she raised with her peers in those teleconference calls that the applicant was available and looking for a position within the organisation, that he was on an expatriate assignment whose role is finishing up and, if anything was available, would they please let her know. According to Ms Werner, nothing was received by her in relation to those enquiries.

93 Evidence was given by the applicant that there were two specific job opportunities that he believed were close to being secured when he formed a view that there was intervention on behalf of the first respondent to ensure that he was ultimately unsuccessful in those positions. One position that the applicant referred to was a position following a discussion with Mr Alex Cameron, Chief Architect, I-Solutions Asia Pacific. That discussion occurred in November 2001, well after the applicant's expatriate assignment had been formally terminated. According to the applicant, there was a position available to be filled as a matter of priority. He said Mr Cameron gave him assurances that the job had been approved and he (Mr Cameron) indicated that the relevant manager who had approved the job 'knows that I am speaking to you'. Further, the applicant said, Mr Cameron indicated that they needed somebody to start within a matter of a couple of weeks. All of this sounded very positive to the applicant and as a consequence he spoke to Ms Werner about it. Within twenty four hours he received a phone call from Mr Cameron saying that the position that they had spoken about was not available. The applicant inferentially points to interference on the part of the first respondent and particularly Ms Werner, in ensuring that that 'in principle' offer of a position from Mr Cameron had now been withdrawn. Ms Werner denies such interference and says that following the applicant advising her that this position looked secure, she rang Mr Cameron to check the certainty of the position and follow up with whatever paperwork may be necessary to ensure the applicant could commence in that position. According to Ms Werner, as a result of her conversation with Mr Cameron at that time, he indicated that there was not an approved position at that time. Mr Cameron did confirm that he had had a preliminary discussion with the applicant about a position that may be forthcoming but that at that point nothing had been approved.

94 In support of Ms Werner's evidence as to the sequence of events as she recalls it, the relevant emails annexed to her affidavit that passed between Mr Cameron and the applicant on 26 November followed by the email sent to Mr Cameron on 27 November, would tend to confirm Ms Werner's evidence on this issue. Mr Cameron was not called as a witness by either party.

95 The applicant also gave evidence of a further job opportunity he says was reasonably definite which he refers to as the Bunker Hill Project. It would seem, as I understand it, that this was a further contractual project the first respondent had with the CBA. The applicant gave evidence of discussions with the relevant persons, Mr Gilhawley and Mr Greg Roberts, executives with the first respondent as I understand it, about the possibility of him being involved in that project. According to the applicant and confirmed by Mr Joseph, he (the applicant) had a discussion with Mr Roberts with a view to securing a position with that project. Mr Roberts certainly raised that possibility with Mr Joseph in a series of emails of 14 November 2001 as follows:

Who do we have with credible process re-engineering skills and experience? Assuming Bunker Hill comes off we will definitely want to use them.

96 On 14 November Mr Roberts followed that email up with the following email message addressed to Mr Joseph:

Dave (J) - I understand that Russell Gilger has some strong skills in this area and is prepared to go 'local'. Any chance we could keep him around till the decision is made and then flip him to local if it comes off? It would be great to have some strong E Solutions credibility in the Enterprise Alignment domain during due diligence to secure our share of the revenue.

97 Mr Joseph's response on the same day was short and to the point, in the following terms:

Going local is something that requires significant preparation and we cannot risk denying somebody opportunities elsewhere based on a probability of signing! Russell is scheduled to repat Dec 8th so unless we have an approved position, local paperwork/transition, a signed deal, confirmation of his e-alignment skills by then no can do ...

98 It is not clear what Mr Joseph might be referring to as far as 'risking denying somebody opportunities elsewhere'. If that was in reference to the applicant, then it is puzzling to know what he meant by 'opportunities elsewhere' as at that time, the applicant did not have a definite position elsewhere, either in Australia, the Asia Pacific region or in the United States. In my view, Mr Joseph's response was indicative of what I have earlier stated was his long held desire to get the applicant off his books, so to speak, and back to the United States no matter what.

99 That the approach Mr Roberts suggested was possible, given a degree of good will on both sides, is evident by his response to Mr Joseph on the same day, later that afternoon, when he said:

Understand if it is not feasible.

For the record, Russell tells me he currently has no opportunities elsewhere (obviously I can't validate this), and hence I thought my suggestion was a win / win. I also assumed that approval from the Bank to move into due diligence could justify creation of a local position (high probability of some form of deal being signed and hence ongoing work at least 12 months or more).

100 At that time, although the Bunker Hill Project was a proposal, no contract had been signed as between the first respondent and CBA in relation to it. According to Mr Joseph, he was not prepared to instruct Mr Roberts to offer the applicant a position in relation to an account that had not been signed. As Mr Joseph stated in his affidavit:

The Bunker Hill Project was only a potential project EDSA was seeking to provide for the CBA but at this point in time in the early stages and not likely to be considered until early 2002. I note that this project was ultimately not undertaken by EDSA.

101 By this stage, the applicant was confronting the reality of his potential repatriation to the United States. As part of that, he then moved to raise with the first respondent the relevant responsibilities of the first respondent in relation to repatriation entitlements. In that regard, I make reference particularly to the relevant host country and home country responsibilities in relation to repatriation, more particularly the responsibilities of the first respondent as host country to cover the applicant for expenses incurred in relation to living, home rental assistance and storage for sixty days as well as compensation expenses for up to sixty days after the assignment has been completed (or until the actual date of transfer to a new position if less than sixty days). Further, transferring the employee to the home country organisation if no position had been located after sixty days.

102 In order to try and facilitate his children's school year in Australia, the applicant sought an extension of his expatriate assignment. That was not granted in the fullest sense but it was agreed that the applicant could use the first thirty eight days of the temporary accommodation provision provided to him in relation to repatriation to remain in his current house in Australia so that his children could complete their school year. That took his employment in relation to the first respondent up to 8 December 2001. However, at the behest of the respondents, a certain number of his expatriate allowances ceased as of the official date nominated for his repatriation, that being 31 October 2001. The applicant remained on the payroll less those expatriate benefits that he had been entitled to up to that date.

103 A few days prior to 8 December, the applicant was directed to vacate his office with the first respondent. It would seem that Mr Joseph, amongst others, was becoming increasingly impatient with the applicant on two counts. One was his continuing activity to look for alternative positions within the context of his expatriate assignment despite being directed to repatriate to the United States in September (although later extended to 8 December). The second count was the applicant's expressed unwillingness at that point to repatriate unless a stated position was identified for him to return to. This unwillingness subsequently hardened into refusal when no such position was ever identified.

104 As events transpired, during December 2001 and January 2002, the applicant remained employed by the first respondent. Because of the applicant's continuing refusal to return to the United States, the second respondent became involved. Ultimately, despite an attempt to resolve the impasse by negotiation, the applicant was advised on 1 February 2002 that unless he indicated his preparedness to return to the United States by 5 February 2002, EDS would regard the applicant's employment to be at an end. The letter from EDS was signed by Mr Marty Curry, Executive Director, Enterprise Consulting with EDS.

105 While on one hand the applicant appeared by November 2001 to understand the requirement for repatriation, he nevertheless continued to constantly explore opportunities for alternative employment options, remaining in Australia. At the same time, on 27 November 2001, the applicant sent the following email to Gwenn Gilbert, the home country officer with the second respondent required to facilitate the home country's responsibilities for his repatriation to the United States. In that email, a copy of which went to Mr Joseph, the applicant said as follows:

Please approve my 60 days of 'home country' sponsored and funded transition from my expat role to be conducted while I work from Australia.

In making this request I accept the risk involved in potentially not finding a follow-on position because I'm not on the ground in Plano or the US. The reasons for making this request are:

· The US market is now officially in a recession. Opportunities are very lean as we (have) seen in the last period of time.

· I have identified two opportunities in Australia that will become much clearer in early 2002 (I.Solutions, regional architect; e.Solutions, Bunker Hill)

· This is the less expensive option to the corporation

· At the end of the day I prefer to remain in Australia - even if made redundant at the end of the 120 transition period. I am aware of and prepared to meet visa requirements if separated from EDS.

· I am confident that my experience, skill sets, and performance characteristics will survive the short-term cost focus.

In order to protect EDS, I recommend that I be given formal (written) notification of when the 'home country' responsibilities begin and end.

Thank you,

Russ

106 It is hard to believe that at that point, that is 27 November 2001, the applicant still believed that there may well be employment opportunities within Australia with the first respondent or in the wider Asia Pacific region within the global corporate structure of EDS. The two positions he refers to in his email to Ms Gilbert had long since been confirmed to him as not available. How and on what basis he continued to believe that they might eventuate into an actual position is something that was never explained nor explored in his evidence before me. Further, it is difficult to go beyond his clear and explicit statement in that email to Ms Gilbert that, at the end of the day, he preferred to remain in Australia even if he was made redundant at the end of the 120 day transition period that arose under the respective home and host country responsibilities. As an extension of that, he acknowledged his awareness of and preparedness to meet visa requirements if 'separated' from EDS.

107 If anything, that comment and the behaviour of the applicant at this time and beyond evinces, in my view, an intention on his part to remain in Australia, no matter what. He knew of his obligation to repatriate. He also believed the respondents had acted capriciously and unfairly in the way they had dealt with him in relation to his expatriate assignment. Further, there is no doubt he believed, although not confirmed, that the possibility of him finding employment with EDS on his return to the United States was less than optimal.

108 To the extent evidence was led on this issue, it disclosed that of the two colleagues of the applicant who did repatriate to the United States from Australia at or about the same time as the applicant was directed to, both of them were found employment with EDS in the United States and both remain employed up to this day by EDS in the United States. Further, an annexure to Ms Black's affidavit identifies twelve persons repatriated from Australia to the United States as employees of EDS between the period 1 April 2002 to 31 March 2003 who are all identified as still employed by EDS. However, beyond that bare listing, I have no knowledge or evidence about the circumstances of those particular individuals nor indeed the two colleagues of the applicant who were also directed to repatriate as part of the overall review of expatriate positions undertaken by the first respondent in 2001. Certainly, on that evidence, the inference is there that the applicant's consistently stated belief that he would not return to the United States because he believed he would be unemployed is difficult to sustain. But, as I said, I know nothing of the employment positions of the other repatriated employees in order to be conclusive on that point. That is, what were the positions and skill set of those other employees relative to the applicant? On the evidence I have such a comparison is not available to me.

109 I have no difficulty in accepting that confirmation of continuing employment in a comparable position would, in all the circumstances of the dislocation he was confronted with, have been a priority for the applicant.

110 Also on this point was the applicant's consistent assertion that one of the obligations the respondents had to him was not only to continue his employment but, if he was to be repatriated to the United States, there had to be a position identified for him to return to. The absence of any identifiable position at any time up to and including the date on which he was formally terminated is evidence, he says, that if he had repatriated to the United States, he would, within a relatively short period of time, have found himself unemployed.

111 In the first instance, there is nothing in the letter of understanding as between the applicant and the first respondent that suggests that there was any obligation on the part of the respondents to identify a fixed position for the applicant on his repatriation to the United States. In the letter of acknowledgement signed by the applicant at the time he accepted his expatriate assignment, it stated on the page which the applicant signed, inter alia, as follows:

By signing below, you accept a long term international assignment from the United States to Australia. You understand such long term international assignment will be subject to the terms and conditions of the EDS global deployment policy (policy) and the specific terms as provided herein....

However, you understand and agree that EDS, in its sole discretion, may change the duration of the assignment at any time.

112 Certainly, the EDS global policy and procedures in relation to expatriate assignments made three references, as best as can be determined, to the responsibilities of the respondents to consider repatriation and, within the context of international assignments particularly, the placement of an employee once repatriation has occurred. Those policy provisions have already been referred to in this judgment but certainly one of them bears repeating at this point as follows:

The home country organisation is responsible for employing the expatriate after the assignment has ended. An expatriate assignment is a financial investment in an individual.

113 Nothing in the respondent's global policy and procedures in relation to international assignments says anything about having to identify a specific position for a repatriated employee to return to. There certainly would appear to be, and understandably so, an obligation on the home country to be responsible for employing the expatriate once the assignment has ended. As the respective responsibilities of home and host country identify, it is the responsibility of the home country to transfer the employee to a new position or to work with 'International Assignments' to determine an appropriate action. What was meant by 'work with international assignments' was never elaborated upon.

114 I believe the applicant was entitled to expect the respondents, between them, would do more than simply direct him to repatriate, if the terms of the EDS global deployment policy was any guide. It (the policy) was after all part of his contract of employment. He was entitled to expect a repatriation plan. There was none. He was entitled to believe the Repatriation Policy of EDS that stated the home country was responsible for employing him once the assignment had ended. As a natural extension of that obligation, he was entitled to ask where that employment would be and in what position. Given that he had been searching through EDS entities since May 2001 for a comparable position, without success, it is entirely understandable he believed that repatriation to the United States would result in his eventual unemployment. As he said in this affidavit:

No position was tendered by EDS in the U.S. and according to the EDS policy I would: 'have 60 days to obtain a permanent position'. I interpreted this requirement to mean that EDS' obligation for employment was only for 60 days on return. In other words, EDS had terminated my two-year contract without cause, I had no position to return to in the United States, EDS had unsuccessfully searched for another position for nine months, and EDS would only guarantee 60 days of employment on my return. I took that to mean that if I did not find local employment, EDS would terminate my employment.

Was the applicant treated unfairly?

115 I am satisfied that the applicant's initial belief as to the likely duration of his expatriate assignment was based on the long term and stable contract that the first respondent had with the CBA. The contract is still on foot. Further, I am satisfied that nothing was said by anybody on behalf of the first respondent to suggest differently to the applicant. Certainly the evidence of Mr Alder, who was the applicant's immediate superior, was only supportive of the applicant's expatriate assignment being extended. Mr Alder's evidence is that he perceived a need at that time for the applicant's expertise extending beyond the initial six months period contemplated.

116 In relation to that point, I am not persuaded that Mr Joseph said anything to Mr Alder that would have caused Mr Alder to raise with the applicant that he should only ever view his expatriate assignment as one of six months rather than two years. In all the circumstances therefore, the failure to make that clear to the applicant only serves to corroborate the applicant's belief as to the long term security of his expatriate assignment.

117 Mr Alder did say in his affidavit and confirmed it in oral evidence that in his experience:

Expatriate assignments rarely extend for the estimated duration. Some assignments are extended and others are cut short due to business and personal issues. For example, two of the other expatriate employees who worked on the CBA account, David Chrisman and Jim Johnson, were repatriated, significantly earlier than originally planned. Other expatriates .... have stayed considerably longer than originally planned.

118 Specifically, in relation to the applicant, Mr Alder gave evidence as follows:

Q. You'd agree with me that at no time prior to agreeing to the extension of Mr Gilger's contract to a long-term two-year assignment did you tell him that it was likely that his two-year contract would not go for the full two years?

A. I don't recall having a conversation like that, no.

Q. In fact it would be fair to say that you indicated to Mr Gilger that the account on which he was working, the CBA account, was a long-standing, stable account?

A. It was a long-term account with some significant issues in volatility.

119 Notwithstanding the above, it is difficult to accept that the applicant contemplated a long term expatriate assignment based solely on his belief as to the long term stability of the CBA account. The evidence would suggest that his eagerness to undertake a two year expatriate assignment was that it opened up career options for the applicant in Australia and the Asia/Pacific region that went well beyond the CBA account. Those opportunities were, as far as the applicant was concerned, more beneficial to him than any opportunities then available to him in the United States. That much is evidenced by the email sent by the applicant shortly after his arrival in October 2000 already detailed in this judgment.

120 That the applicant was clearly enthusiastic to extend his skills and experience beyond the CBA account was further evidenced in his email to Mr Joseph on 5 April 2001, also earlier referred to, in which he identified options that he could pursue that would further develop his career potential in the Asia Pacific region. All of these options involved reference to the Asia Pacific region, including Japan and Korea. I have already referred to Mr Joseph's reply of 5 April which was, in a general sense, less than enthusiastic about the applicant's suggested options.

121 What the above emails represent, in my view, was that almost immediately from the time the applicant arrived in Australia as part of his expatriate assignment, he was already contemplating moving on from the Strategy and Innovation Office within the CBA account but within the overall context of his expatriate assignment.

122 It has to be said that while Mr Joseph's response to the applicant's email of 5 April was less than enthusiastic, it must also be said that, amongst other things, Mr Joseph did say 'I am favourable to considering you for a broader role in A/P'. That comment, on any view, would only have fuelled the applicant's belief and enthusiasm as to his potential within the context of his expatriate assignment. Accordingly, I believe, when he was told on 24 May 2001 by Mr Joseph and Mr Schellekens that his expatriate assignment was under review and that repatriation may be an option, he received what I can only describe as an ambiguous message. The first is they confirmed his earlier expressed desire to look into moving into another role and stay in the Asia Pacific for an undetermined period. They also indicated that they were intending to move him from the CBA account in order to move in Mr Greig Trosper. Next, he was told that the first respondent wanted to assist the applicant to 'find a solution'. True it is this latter assurance was emphasised in the context that, if a solution was unable to be found, he would be asked to repatriate early to the United States and the first respondent would not fund the travel of his children to Sydney.

123 At the same meeting Mr Joseph told the applicant that he (Mr Joseph) would do all that he could to relocate the applicant and he advised the applicant to liaise with Ms Werner in Human Resources with a view to assisting him as well.

124 As a result of those discussions, the applicant knew that his work on the CBA contract was coming to an end. However, I do not believe that he perceived that the discussion he had with Mr Joseph and Mr Schellekens at that time was a threat or a suggestion that his long term expatriate assignment would necessarily be terminated in the short to medium term. Certainly, the applicant knew he had to find other options. However, given that he had already canvassed options in his April email to Mr Joseph, he gave every indication of being confident that alternative career opportunities as an expatriate would be found for him within Australia and/or the Asia Pacific region.

125 Two things should be said at this point. It seems abundantly clear to me as part of the discussion held with the respondent on 24 May 2001, that Mr Joseph or Mr Schellekens should have made it clear and unequivocal they considered the applicant's expatriate assignment was at an end. While that might have been a harsh decision given the length of time that the applicant had been in Australia, it might have been, given what eventuated, a fairer position to have left the applicant in, notwithstanding whatever implications may have flowed from that decision. But they did not do that. They, in my view, led the applicant to believe that everything that could be done would be done to assist him in finding alternative options within his expatriate assignment. Further, in my view, they quite unfairly led the applicant to believe that is what they were doing and would do because in June Mr Joseph approved the relocation of the applicant's wife and remaining two children to Australia. That approval could only have acted as a positive indicator to the applicant that the first respondent was keen to retain his services and confident that an alternative position would be found for him. Otherwise, why go to the expense, as the first respondent did, of spending the money it did to bring the applicant's wife and remaining family all the way to Australia and allow them to settle into life and school in this country if they were not keen to ensure he remained for the best part, if not all, of his two year expatriate assignment.

126 During this time the applicant was continuing to try to locate alternative career opportunities within the context of his expatriate assignment. At that time, he was insisting that he should be able to do so whilst retaining the value of his expatriate assignment entitlements. Mr Joseph made it clear to him that such an expectation was unrealistic. I have to say Mr Joseph never said why such a view on the part of the applicant was unrealistic given that the cost of the applicant's two year expatriate assignment had been costed and approved prior to his appointment. It was no fault of the applicant's that one of the reasons for bringing the applicant's expatriate assignment with the CBA to an end sooner than anticipated was for cost reasons. I do not accept that to necessarily be so, given that the cost of the applicant's expatriate assignment was long ago costed and approved as part of the initial approval process.

127 Overall, I believe that once Mr Joseph and Mr Schellekens had spoken to the applicant in May, notwithstanding their spoken intentions to him to the contrary, they formed the view that the most expedient thing from their point of view was for the applicant to return to the United States to the responsibility of the second respondent and EDS generally and that they wanted that to happen sooner rather than later.

128 As earlier indicated, I believe the first respondent made no genuine attempt to actively relocate the applicant as an expatriate. Although the applicant asserts it, there was no direct evidence before me that anybody on behalf of the first respondent actively intervened in thwarting a particular position that the applicant may have been able to negotiate for himself during the period of time that he was looking at other options. There is certainly evidence that they were not and would not have been supportive when the applicant identified particular positions to them that were being considered. I have already mentioned the enquiry made by Mr Heger. I have no doubt that when he got the response he got from Mr Joseph, it would have closed off any open mind Mr Heger might have had about exploring the possibility of using the applicant's skills on the EDS Telstra account.

129 In my view, Mr Joseph was not interested in assisting the applicant because by May of 2001 or no later than early June I believe his mind was firmly made up that he wanted the applicant back in the United States. Nevertheless, he, together with Mr Schellekens to a lesser extent, allowed the perception to continue that they were actively and positively assisting him when in fact they were not. They wanted to create the impression they were treating the applicant fairly when they were not.

130 When the applicant was given formal notice of the first respondent's intention to terminate his expatriate assignment effective from 31 October 2001, that was extended at the applicant's request until 8 December 2001. That was done, quite properly in my view, to facilitate the completion of the school year for the applicant's children. However, it would appear on the evidence before me, particularly the email evidence between the first and second respondents that, as the applicant's expatriate assignment was deemed to have come to an end on 31 October 2001, the additional expatriate entitlements ceased from 31 October, notwithstanding that the applicant remained employed until 5 February 2002.

131 There is no doubt that a direction that the applicant was to return to the United States was one that the respondents were entitled to give. On that point it must be said, however, such a right cannot be divorced from acceptable standards of substantive fairness within the terms of the applicant's contract of employment.

132 In November 2001, the applicant had two views about his future employment and his intention to repatriate or otherwise. Curiously, on 27 November 2001, the applicant sent two emails. One was to Mr David Chrisman, the Client Executive and Director of e Asia Pacific in which Mr Chrisman was enquiring about why the applicant continued to appear to be operating in the belief that his employment in Australia was ongoing and that he should be focussing on job search. The applicant replied as follows:

I need to provide value for my salary. I think we agreed I would take what time I needed for the job search and in the blank space do value-add projects. Ken Tunks and Greg Roberts scheduled this particular meeting in response to a request from Phil Heaney. The meeting was very positive and we walked away with a commitment for 1-2 half-day educational course and a D4S workshop that will lead to 'tactical' implementation projects, which Phil is keen to get started on, that will naturally flow to E.solutions. Nigel is the only other person locally who could have pitched the D4S offering.

On the repatriation front, I have requested that the US fund the final 60-day job hunting period in Australia. They have responsibility for my salary, living expenses, and finding me a position for the 60 days after the host country 60 days (total of 120 days) are completed. Either I have a new position in EDS or EDS has to make a hard decision.

As you know, E.solutions fired 180+ people last month and the cuts are continuing. I understand I.solutions fired 103 during one recent week and anticipate cuts into next year. We are also entering the holiday period which is traditionally slow and people tend to put off decisions (and clients -- projects) until the New Year. It is not a good time to be unbillable in E.solutions. At least here, if fairness and logic prevail, there are a couple of positions that may come open early next year that I could fill as a 'local'. I am prepared to continue to add substantial value wherever I can.

I have requested a sit-down meeting with Dave Joseph to discuss perceptions and options going forward. I sense that there is growing frustration and some anger towards me regarding my situation. If correct, this is not positive or productive for either side. It was certainly not my intention to create these feelings and I'm confident that it is based on perceptions on both sides. My hope is that with an open and frank meeting we can identify a couple of win-win options going forward.

133 That email certainly spells out the applicant's concern about his desire to remain in Australia and his concern about what would occur should he return to the United States. Curiously, on the same day, that is 27 November 2001, the applicant sent the email to Ms Gwenn Gilbert, the second respondent's representative responsible for the repatriation of expatriate employees in the United States. In that email, which has already been set out in full in this judgment, the applicant made it clear that, all things taken into consideration, he said:

At the end of the day I prefer to remain in Australia - even if made redundant at the end of the 120 transition period. I am aware of and prepared to meet visa requirements if separated from EDS.

134 It was very clear that as at 27 November 2001, as far as the respondents were concerned, the applicant intended to remain in Australia no matter what - even if it meant 'separating' himself from EDS. I believe that by that time, the applicant's desire, and that of his family, to remain in Australia was influenced as much by the way in which the respondents had dealt with his expatriate assignment as well as his belief that to repatriate meant certain unemployment such that he was prepared to accept the possibility that he would be, in his words, 'made redundant'.

135 There is no evidence to which I was directed that could assert with any confidence that the applicant was made redundant by the respondents. The applicant's clear intention as of 27 November to remain in Australia was, I think, a very considered and deliberate one having regard to all that had occurred. Nevertheless, I believe that it was a choice that the applicant made, fully aware of the consequences, that being that he would lose his employment, via redundancy or otherwise, with the respondents. He gave evidence that in November 2001, the same month in which he advised Ms Gilbert, Mr Joseph and Ms Werner that regardless of what occurred, he and his family wished to remain in Australia - he and his wife made an offer to purchase a local nursery in Dural. As he said:

My wife and I made an offer to purchase the business which was accepted. We worked in the business for a trial period under the contract but the sale was not completed and my wife and I lost a considerable sum.

136 The applicant's desire to buy into a business in Australia is not conclusive that if a position had been identified for him in the United States, he would not have repatriated to the United States. However, I believe that by that time the applicant was convinced, largely because all of his efforts and those of others on his behalf having come to naught, that he would be returning to certain unemployment. While is it not possible to be conclusive on that issue, the applicant's efforts up to that time certainly suggest his belief was not without foundation. He was also, understandably, upset as to the circumstances in which his expatriate assignment had been terminated given what he understood was his belief as to its duration and the respondent's contractual obligations to him. Ultimately therefore, the applicant had confronted the notion of repatriation and decided that he did not wish to return to the United States. He was prepared to take his chances here and he saw his career opportunities very much fixed in Australia and the Asia Pacific.

137 Having regard to all I have found, I believe the groundwork for the contractual unfairness that ultimately arose for the applicant was laid by reference to the circumstances in which his long term expatriate assignment was initially created. The fact that it was readily approved to be a long term two year assignment created the belief that I have determined did exist in the applicant's mind that there was ongoing security in relation to his expatriate assignment for that period of time notwithstanding that he did not necessarily see it as being confined to the CBA account. That belief was allowed to take root and, in my view, was reinforced by the first respondent when it took the decision it did in May 2001 to advise the applicant of their intention to remove him from the CBA account but at the same time to assist him in relation to 'further options' within the first respondent or other EDS entities in the Asia Pacific region. I believe the actions of the first respondent and officers within the organisation became relevantly unfair by allowing the applicant to continue to believe they were actively looking for genuine alternative positions within the context of his expatriate assignment when I do not believe that they were constructively and positively doing so at all. This belief, which I believe they unfairly allowed to develop in the mind of the applicant, was only compounded, quite wrongly in my view, by formally approving the relocation of the applicant's wife and remaining children to Australia in June 2001.

138 The first respondent says that they did all that they could to assist the applicant but that he made it difficult for himself in that he continued to insist that he wanted to remain on expatriate assignment remuneration conditions as part of any 'local' package. I have to say I do not find it surprising nor unreasonable that as best and as far as possible, the applicant desired to retain the overall value of his total remuneration package. Despite the evidence of Mr Joseph that such an approach was not possible, I am not persuaded, if the respondents had been so minded, that it would not have been possible for the first respondent to do that for a specified period of time that was fair and reasonable in all the circumstances. The email of Mr Greg Roberts to Mr Joseph in November 2001 earlier referred to suggests that such an approach was, with a degree of goodwill and fairness, possible and feasible.

139 To the extent that the actions taken by the first respondent were the genesis of the unfairness I have found, I am also satisfied that ultimately the first and second respondents are jointly and severally responsible. I say that having regard to the actions of the second respondent when they were asked to intervene by the first respondent when the applicant was, in their eyes, proving somewhat difficult in his continuing desire to remain in Australia and the Asia Pacific region on his expatriate assignment.

140 I believe that the applicant's contract, insofar as it permitted or failed to prevent the respondents from terminating the applicant's expatriate assignment in September 2001, effective from 31 October, given the overall circumstances that had taken place up to that time and having regard to all that the applicant had been confronted with by his move to Australia, the family relocation and upheaval as well as career disappointments visited upon him with no question marks as to his performance, was unfair.

141 I note that the respondents did agree to extend the applicant's employment initially until 8 December and then ultimately until 5 February 2002.

142 I believe that the applicant's ultimate refusal to return to the United States left the respondents with no alternative but to consider his employment at an end.

143 In doing so and having regard to the background circumstances, I believe the applicant was entitled to proper notice which was not provided by his contract. In saying that, I do not consider the extension of his employment from 8 December 2001 to 5 February 2002 meant that the applicant received proper notice. The applicant was still considered to be employed albeit that his expatriate entitlements had ceased. There is no doubt matters had reached an impasse between he and the respondents. There is also his illness during that period to be taken into account. Notwithstanding those matters, I believe it is appropriate to consider the applicant as continuing to be employed by the first respondent during the December 2001 - February 2002 period within the context of his expatriate assignment. That the first respondent acted to bar the applicant from the first respondent's office premises and facilities during that time is evidence that primarily goes to the continuing unfairness of the first respondent rather than any refusal by the applicant to carry out his role as an expatriate employee. In that sense the contract was unfair in not requiring full payments to continue during the extension period.

144 In determining an appropriate compensatory money order, I believe it should be based on reasonable notice as to the termination of his contract. I say that notwithstanding the provision in the letter of acknowledgement signed by the applicant that in accepting his expatriate assignment 'EDS, in its sole discretion, may change the duration of the contract at any time'. Such a right cannot be relied upon in circumstances tainted by unfairness as is the case before me. That is, at least, given the existence of s 106, such a provision cannot be relied upon to support any unfair conduct towards an employee within the context of his contract of employment. I find the provision relied upon by the respondents unfair and it operated unfairly in the circumstances of this case.

145 Considerations as to compensatory money orders requires considerations as to relevant factors as well as steps taken by the applicant to mitigate his loss.

146 In the first instance, I accept as a general proposition that the nature of the applicant's skill base in the IT consulting industry was and is in a specialised industry. The extent to which such a skill base is transferable to other positions is not known to me in the evidentiary sense except that the applicant had some difficulty in finding work after the termination of his employment. What is not clear to me is whether that difficulty is directly related to the nature of the applicant's specialised skills or whether, as circumstances then existed within that industry, there was a general downturn in available positions. I would be more inclined to the latter view based on the evidence I have received as to the state of the IT employment market at that time.

147 I accept that the applicant, during his period of time with EDS, had a number of promotions. Whether those promotions represent a meteoric rise, as contended on behalf of the applicant, or whether they were promotions that could be expected in the normal course of the business of EDS is not clear to me. Nevertheless, I accept that he was, on the basis of the material before me, an employee who had important and valuable skills to EDS and at no time was his performance brought into question. In other words, there seems no reason to suggest, prior to the problems that arose in relation to this particular expatriate assignment, the applicant could not have seen anything other than a positive career future within the global structure of EDS.

148 I accept that what occurred to the applicant in 2001-2002 in having his employment terminated in the circumstances that arose would have certainly placed him at a disadvantage in relation to ongoing career opportunities in Australia, if only in the sense that he had to turn around and establish his professional credibility in the context of a whole new employment market. Based on his evidence on this issue, I am satisfied that the applicant took all reasonable steps to try and secure alternative and relatively comparable employment opportunities.

149 The applicant and his family still reside in Australia. He did not obtain alternative employment until September 2002 at which time he was offered employment with IBM in a position located in Sydney, relevant to his skill set and earning an income similar to that which he was earning with EDS (exclusive of the specific expatriate allowances and benefits). He is still employed with IBM.

150 Having regard to all of the circumstances surrounding the contractual unfairness I have found and what this represented to the applicant, the applicant should be compensated in the first instance on the basis of his annual remuneration package, inclusive of his specific expatriate allowances, up to and including 5 February 2002. Further, the contract of employment should be varied to correct the unfairness I have found. That is, the contract is to provide for notice or payment in lieu thereof of four months from 5 February 2002 based on his remuneration package but excluding his specific expatriate allowances. In making this variation and consequential compensation order, I have taken into account the applicant's ultimate decision he took to not repatriate to the United States. Given the finding I have made as to the applicant's decision to remain in Australia, I do not consider that his claim for relocation expenses can be justified.

151 The applicant is also entitled to interest in accordance with the relevant provisions of the Supreme Court Act 1970 (NSW). I also order that the respondents pay the applicant's costs of the proceedings as agreed or assessed in accordance with the Rules of the Court.

152 The applicant has sought that any money orders made be made in Australian dollars but based on the US dollar exchange rate as at 5 February 2002. It is my understanding that during the time the applicant was employed by the respondents he was employed and paid in US dollars. In relation to the agreed matters filed, his base salary, superannuation/pension contributions, foreign service payment and allowances are all quoted in US dollars. If that be the case, it seems to me in determining the monetary compensation that I have, that the amount be determined in US dollars in the first instance and then converted into Australian dollars at the exchange rate applicable as at his effective termination date which was 5 February 2002. There was evidence before me from the Reserve Bank of Australia as to the relevant rate as at that date.

153 I would request that the parties confer with the view to drafting orders to reflect the findings I have made and to file them within twenty eight days of this judgment.

LAST UPDATED: 24/02/2005