Jan Biviano and others and Sydney South West Area Health Service [2006] NSWIRComm 1176 (14 December 2006)

Last Updated: 18 April 2007

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : Jan Biviano and others and Sydney South West Area Health Service [2006] NSWIRComm 1176



FILE NUMBER(S): 3819;3820;3821;3822

HEARING DATE(S): 7/072006;10/07/2006;11/08/2006

DECISION DATE: 14/12/2006
PARTIES:
APPLICANTS
Jan Biviano
Kim Marie Burchett
Kim Van Luu
Liiljana Kristic
RESPONDENT
Sydney South West Area Health Service

JUDGMENT OF: Bishop C


LEGAL REPRESENTATIVES

Mr D Taylor
Solicitor
Turner Freeman Solicitors
Mr P Ginters of Counsel
Mr A Dansie
Sydney South West Area Health Service.

CASES CITED: Alison v Bega Valley Council (1995) 63 IR 68.
Antonakopoulos v State bank of New South Wales (1999) 91 IR 385.
Bankstown City Council v Paris (1999) 93 IR 209.
Byrne & Anor v Australian Airlines Limited (1995) 185 CLR 410
Clarke v Pittwater RSL Club (1998) 84 IR 309.
Cook v CFP Management Pty Ltd [2006] QCA 215
Hanslow v Nationwide News Pty Ltd t/as News Advantage Sydney IRC 4390 OF 2002 (20 December 2002)
Jarvis v Costandi ]2005] NSWIRComm 311 11.
National Union of Workers' v United FM Pty Ltd t/as KFPM [2006] NSW IRComm 112.
Nicholson v Heaven & Earth Gallery Pty Ltd (1994) 126 ALR 233.
Notification by BHP Steel (AIS) Pty Limited under s 204 of the Industrial Relations Act 1991 of a question, dispute or difficulty re systems of work in the Packaging, Products Department and another matter, Industrial Relations Commission of New South Wales, unreported, Hungerford J, 19 February 1997.
Police Association v NSW Police (No 3 ) (2005) 144 IR 150. Re Government Cleaning Service Award No 2 (1994) 55 IR 199. Re Government Cleaning Service Award No 3 (1995) 59 IR 348
Re Loty and Holloway v AWU [1971] AR (NSW) 95.
Ramnani v Specix Pty Ltd [2005] NSWIRComm 1211
Seipal v John Fairfax Holdings Ltd (25 July 2002) IRC 3635 of 2001
SDA v WD & HO Wills Holdings Ltd [ 2000] NSWIRComm 98.
The Shift Workers' Case [1972] AR (NSW) 633.
United FM Group Services Pty Limited t/as United KFPW v National Union of Workers, New South Wales Branch [2006] NSWIRComm 391.
Ward v Mobile Renovations Limited[2000]NSWIRComm 287.
Williams v Pigment Dispersions Pty Ltd {2004] NSWIRComm 268

LEGISLATION CITED: Industrial Relations Act 1996
Services Act 1997



JUDGMENT:

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: BISHOP C

14 December 2006

Matter No IRC 3819 of 2005

Jan Biviano and Sydney South West Area Health Service
Application by Jan Biviano re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996

Matter No IRC 3820 of 2005

Kim-Maree Burchett and Sydney South West Area Health Service
Application by Kim-Maree Burchett re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996

Matter No IRC 3821 of 2005

Kim Van Luu and Sydney South West Area Health Service
Application by Kim Van Luu re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996

Matter No IRC 3822 of 2005

Ljiljana Kristic and Sydney South West Area Health Service
Application by Ljiljana Kristic re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996

DECISION

[2006] NSWIRComm 1176

1 The four applicants in these matters allege that they were constructively dismissed by the Sydney South West Area Health Service ("SSWAHS") from their respective positions of Health Education Officers at the Youth Drug Court Induction Unit (" YDCIU") on 1 July 2005. They each sought re- employment or monetary compensation in lieu thereof.

2 The four matters were listed for conciliation and directions before Commissioner McLeay on 16 August 2005 at which time conciliation took place. The parties were directed to confer and the matters set down for further conciliation on 14 September 2005. However this date was vacated at the request of the applicants and re-listed on 13 January 2006 at which time further conciliation took place. The parties were to continue conferring with a report back listed for 24 February 2006. This date was vacated with the matters being re-listed on 7 March 2006. At this time the Commission was advised that there was no possibility of any settlement of the matters being reached between the parties. Directions as to the filing and exchange of witness statements were then issued pursuant to Practice Direction 17.

3 The four applications were set down for hearing before the Commission as currently constituted, on 7 and 10 July 2006. As the hearing did not conclude on these days, a further hearing date of 10 August 2006 was also required.

4 At the hearing Mr Taylor, Solicitor, appeared on behalf of the applicants who were called to give evidence and had filed affidavits as follows:

Kim-Maree Burchett - Exhibits 1 and 2,
Jan Biviano - Exhibits 5 and 6,
Kim Van Luu - Exhibits 8 and 9,
Ljiljana Kristic - Exhibits 11 and 12.

5 Mr Ginters, of Counsel, appeared on behalf of SSWAHS and called the following witnesses who had also filed affidavits as follows:

Gregory Driver - Deputy Manager, Human Resources, SSWAHS,

(Exhibit 16),

Matthew Noone - Manager, Court Diversion Programs, Drug Health,

Services, SSWAHS, (Exhibit 24),

Linda Goodwin - Area Business Manager, Drug Health Services,
SSWAHS, ( Exhibit 28),
Victoria Nesire - Area Business Manager, Cancer Services, SSWAHS,

(Exhibit 35).

Background and chronology (based on the evidence filed and the transcript).
6 In July 2000, SSWAHS began administering a new facility known as the Youth Drug Court Induction Unit ("YDCIU"), as a pilot program. The YDCIU was initiated following a New South Wales Drugs Summit in 1999, with the funds being made available through the National Illicit Drug Diversion Initiative ("NIDDI"). Under this arrangement funding for the YDCIU passed from the Commonwealth Government to the SSWAHS via the New South Wales Department of Health ("NSW Health ").

7 The YDCIU was one of three Court Diversion programs within SSWAHS and was funded on a temporary basis under an annual agreement with either NSW Health or the Commonwealth Government.

8 In approximately 2001 all the Court Diversion programs, including YDCIU, were transferred to the management of Drug Health Services (" DHS"). In the 2004 DHS went to a program management structure having a Court Diversion Program Manager who reported directly to both the Service Director and the Clinical Director, and a Youth Drug Court Co-ordinator who reported to the Program Manager. The YDCIU Co-ordinator (occupied on an acting basis between April 2005 and June 2005) was directly responsible for the actual and day-to-day management of the YDCIU and staff (in conjunction with the Court Diversion Program Manager).

9 In late 2003, as a result of a change in Commonwealth Government policy, the Commonwealth/State agreement included a requirement that the YDCIU funding be contestable and subject to a tender process to the Non-Government Organisation sector ("NGO"). Discussions regarding the transfer of management of the YDCIU to an NGO were held between NSW Health and the Commonwealth Government however SSWAHS was not directly involved in these discussions.

10 In June 2004, SSWAHS received formal advice from NSW Health regarding the intended transfer of the YDCIU to an NGO which was projected to occur in November 2004, (Exhibit 35 -VN7). There was subsequent advice received in mid-October that a preferred NGO had been selected to take over management responsibilities of the YDCIU , (Exhibit35 - VN8). However the transfer to the NGO was delayed due to the impending Federal election and the SSWAHS was to continue to manage the YDCIU until 1 March 2005. The changeover date was subsequently extended to 30 June 2005, (Exhibit 35 - VN9).

11 During 2004 and early 2005 a number of meetings were held between staff (including the applicants) and management at which discussion of the proposed "transfer" (or "privatisation") of the YDCIU took place.

12 The successful NGO was Youth Off The Streets ("YOTS") which was to take over operations of the YDCIU on 1 July 2005.

13 In March 2005 YOTS provided to SSWAHS a "Timeline for YDAC Induction Unit - transition of management from SSWAHS to Youth Off The Streets" (Exhibit 20) which provided inter alia as follows:
· 6 April - jobs advertised internally and externally (inline with YOTS

position as an equal opportunity employer),

· 13 April - meet and greet day,
· 21 April - applications close for all applicants,
· 27 - 29 April - interviews internal applicants,
· 3 - 4 May - interviews external applicants
· 13 May - offers of employment to eligible candidates,
· 31 May - all contracts signed,
· 1 July - YOTS commences operation of YDCIU.
14 The YDCIU was a residential unit located at Liverpool which operated on a 24 hour, seven day basis. There were no internet facilities at the unit and only Ms Burchett of the four applicants, at the time had internet facilities at home.

15 None of the applicants held formal qualifications. Ms Burchett and Ms Van Luu had previous youth worker experience. Ms Biviano's previous experience had been as an assistant nurse and Ms Kristic had commenced nursing studies and had had previous employment as a student registered nurse.

16 The applicants commenced employment with SSWAHS as temporary employees and were covered by the provisions of the Health Industry Status of Employment Interim (State) Award and the Health Professionals and Medical Salaries Award.

17 Of the four applicants only Ms Kristic did not have family responsibilities, the other three had family responsibilities (one or more children). All four had worked shift work (primarily night shift) at the YDCIU. Their commencement dates and hours' of work per week were as follows:

Ms Burchett - 11 November 2002 - 25.5 hours,

Ms Biviano - 17 November 2003 - 24 hours,

Ms Van Luu - 14 January 2002 - 38 hours,
Ms Kristic - 7 May 2002 - 38 hours.

18 The applicants all joined the Health Services Union (the "HSU") in 2004. As a result of representations by the HSU that existing employees should be made permanent, SSWAHS reviewed the employment contracts of each employee, as a result of which some employees were offered permanent appointments. Ms Burchett, Ms Van Luu and Ms Kristic were advised by letter dated 8 September 2004 concerning the proposed transfer of the YDCIU to an NGO, that:-

" In the event that a transfer to the Non Government Organisation is not possible, the Area Health Service will offer you a permanent position at your existing classification maintaining your existing employment status i.e. full-time or permanent part-time. Whilst it is unlikely that a position similar to that which you currently occupy will be available following the transfer of the Induction Unit, the Area Health Service will, wherever possible, relocate you to a position that is commensurate with your skills and experience. To assist us in this task, it would be appreciated if you could complete the attached documentation and forward it to Gina Finocchiaro, Employee Services Manager, Liverpool Health Service at your earliest convenience. This information will, of course, be treated confidentially". (Exhibit 35 - VN15, VN16, and VN16).

19 Ms Biviano was advised letter dated 8 September 2004 that if she was not offered employment with the NGO her temporary contract of employment would conclude on the date that SSWAHS ceased to operate the YDCIU, (Exhibit 35 - VN19). Ms Biviano received a subsequent letter dated 24 February 2005 offering to extend her temporary employment until 30 June 2006 and advising that her temporary of employment with the Area Health Service would cease effective 30 June 2006, (Exhibit 35 - VN20).

20 On 11 April 2005, SSWAHS facilitated and paid for staff to attend a "resume writing" one day workshop to assist with future job applications.

21 On the 13 April 2005 SSWAHS arranged for staff to attend an open day at YOTS as a "meet and greet" exercise.

22 YOTS positions were advertised on 6 April 2005, with a closing date of 21 April 2005. YDCIU staff were advised of the advertised positions and rostering changes were made to accommodate attendance at interviews at the end of May 2005. SSWAHS arranged for "priority" interviews for YDCIU staff. All four applicants applied for and were offered positions with YOTS.

23 In May 2005, the HSU notified a s.130 dispute concerning the remaining staff members of the YDCIU who had not been made permanent in September 2004, which came before Grayson DP. His Honour issued the following recommendation on 10 May 2005 (Exhibit 16 - GD8):-

"It is the Commission's firm view, and I so recommend, that between now and the time that the functions of the Youth Drug Court Induction Unit are transferred to the community welfare organisation Youth Off The Streets, the Area Health Service and, to the extent that it is appropriate, the Health Administration Corporation, spare no effort to examine and, if at all practicable, facilitate the continuing employment of all 15 persons presently involved in the work of the induction unit. The Commission understands that the transfer of the functions of that unit to Youth Off The Streets will take place on or about 1 July 2005. It is, therefore, imperative that the employer move without delay in the interest of doing what is now recommended by the Commission.

It seems to the Commission, in making that recommendation, that it is essential that the employer treat all present employees of the induction unit in a fair and consistent way. That, of course may have had implications for future proceedings in any event.

The Commission is also advised, and it is of relevance, that the successful tenderer, Youth Off The Streets, has indicated a willingness to consider applications from present employees of the induction unit, as I understand it (and these are my words) as priority applications, and it seems to the Commission that that, amongst other things, it should be a necessary part of the efforts of the parties in seeking to resolve this particular dispute.

Having said that, the Commission is aware of the potential for such employees, who may apply for and obtain positions with youth of the streets, to suffer some kind of reduction or diminution in conditions of employment and rates of pay. On that basis, I note Mr Mason's undertaking to communicate the Commission's recommendations both to the Area Health Services and Community without delay."

24 Matthew Noone was responsible for identifying suitable alternate employment either within SSWAHS or outside of the organisation.

25 On 20 June a meeting was held with YDCIU staff which was attended by Mr Driver, Mr Noone, Ms Nesire and Ms Goodwin (then known as Ms Gilkinson). At that meeting staff were given a letter in relation to positions that had been identified by Mr Noone as being suitable for appointment by the staff at the YDCIU, (Exhibits 16 -GD 9, GD10, GD11 and GD12). Staff were asked to advise Mr Noone by 22 June of those positions for which they would like to be considered for appointment in their preferred order of positions. It was also confirmed that the new administration (YOTS) would be responsible for the Unit as from 3 p.m. on Friday 1 July 2005.

26 The positions that were identified as being "potentially suitable" were as follows:-

Opiod Treatment Program (Methadone)

· Case Manager - Liverpool
· Case Manager - Campbelltown

MERIT

· Counsellor - Liverpool

Corella Drug Treatment Service
· HEO - Fairfield

Harm Reduction Program

· HEO - various

DIS - Eastern Zone

· Counsellor, Canterbury

FLYHT (Fairfield CHC)

· HEO - Youth, Community Development.
· Counsellor - Social Worker or psychologist

Traxside (Campbelltown)

· Counsellor
· HEO

Multicultural Health

· Health Education Officer

Health Promotion

27 The letter also, inter alia, advised as follows:

"The process from that point will be that an interview with the manager of that service, together with Mr Matthew Noone, will be arranged in the near future. If you are considered suitable for appointment you will be appointed to that position effective from 1 July 2005, but you will remain on your current roster at the Youth Drug Court Induction Unit up to 30 June 2005. In the event that process does not result in an appointment, you will be attached to the Drug Health Service or another service in a supernumerary capacity until a suitable position is identified for you. During this time you also have a responsibility to actively seek suitable positions, both within the Sydney South West Area Health Service and other Area Health Services."

28 Of the four applicants only Ms Kristic applied for one of the abovementioned positions (Multicultural Health Education Officer). She attended an interview for the position but was unsuccessful.

29 By letter dated 24 June 2005, the applicants were advised that if they did not take up employment with the YOTS they would be a displaced employee in terms of Department of Health Circular Number 2000/78, Managing Displaced Employees (Exhibit 19) and entitled to the provisions of that circular in relation to vacant positions in the public health care system. The letter also made brief reference to the circumstances for a priority I status and of salary maintenance where placed in a position attracting a lower award rate. The letter also indicated that salary maintenance did not apply to penalty rates and that if they were not working shift work in any future position then they would not be paid penalty rates,(Exhibit 16 - GD13,GD14,GD15, and GD16).

30 SSWAHS verbally advised staff that if they had accepted a job with YOTS they had to complete a resignation form which would enable their accrued entitlements to be paid out.

31 Ms Biviano received written confirmation dated 28 June 2005, (Exhibit 16 - GD17), that she was now regarded as a permanent employee effective 9 June 2005 as a consequence of the recent proceedings before the Industrial Relations Commission (the dispute before Grayson DP).

32 The four applicants accepted the jobs offered by YOTS and completed SSWAHS resignation forms on or about 28 June 2005.

33 Employment with YOTS was in terms of a contract signed by each applicant for a two year period from 1 July 2005 to 30 June 2007. (Ehibits 3,7,10 and 13). The contracts provided, inter alia, that their employment was covered by the Social and Community Services (State) Award (the "SACS Award") with remuneration of $37,206 per annum (on a pro-rata basis if part time) which aligned with Grade 3, Year 3 under the Award. Positions were to be on a filled on a 24 hour roster basis and provided for the following weekly hours of work for the four applicants:-

Ms Burchett - part time minimum hours of 24,
Ms Biviano - full time 38 hours,
Ms Van Luu - full time 38 hours,
Ms Kristic - full time 38 hours.

34 Ms Van Luu and Ms Kristic signed their contracts with YOTS on 28 June, Ms Biviano on 29 June and Ms Burchett on 30 June 2005.

35 Of the 12 staff at the YDCIU, 7 remained in employment with SSWAHS after 30 June 2005 and as the date of the hearings were still employed by SWWAHS. The remaining 5 employees (including the applicants) took up positions with YOTS and resigned from SSWAHS. As at the date of the hearings the applicants were still employed by YOTS.

36 The applicants essentially maintained that SSWAHS forced them to resign and that that resignation was therefore a constructive dismissal. They sought re-employment with SSWAHS.

The Evidence
37 All four applicants generally gave similar evidence which may be summarised as follows:
· They first heard that the YDCIU was to be privatised in late 2003.
· A number of meetings took place between management and staff in 2004 concerning the transfer of the YDCIU to an NGO.
· They all maintained that the word "privatisation" was used rather than transfer.
· They confirmed that they were initially told the transfer would be in November 2004 and were later told in November that this date would be delayed.
· They were given no information about redeployment or what their future would be with SSWAHS and did not know what would happen about their jobs.
· Several meetings occurred between February and June 2005 when they were told that YOTS was the successful NGO and would take over on 1 July 2005.
· They were not given any information about redeployment despite asking on a number of occasions for such information.
· They were told that they could not be redeployed until after 1 July 2005.
· They were told on a number of occasions by persons such as Mr Driver and Mr Noone that they could not work for YOTS and also work for SSWAHS.
· They were told that if they accepted a job with YOTS they would have to resign from SSWAHS.
· They asked for information about other jobs but were never given any information until such time as Mr Noone gave them the list of alternate positions available on 21 June.
· No other positions were offered to them and Ms Biviano, Ms Van Luu and Ms Burchett all indicated that the positions were unsuitable because of their family responsibilities. Only one position involved shift work and that involved 12 hour shifts which Ms Biviano said was not suitable to her family commitments. The other positions also involved training and skills they did not possess.
· They also maintained that issues of childcare arrangements were raised with management at meetings on a number of occasions.
· The only information that they were given about what might happen after 1 July was that they could be required to do administrative work such as filing.
· SSWAHS took no other steps to provide them with an opportunity to continue permanent employment with SSWAHS.

38 In relation to the issue of resignation the evidence, whilst along similar lines varied slightly from applicant to applicant, as set out below.

39 Ms Burchett deposed that on 28 June when she advised Linda Gilkison that there were no positions suitable for her, she was handed a resignation form and asked to sign at and told it had to be signed before 30 June. She did not feel she could risk not taking the YOTS job and was worried about what they would do. She felt she was left no option but to sign the resignation form. Her preference was to stay with SSWAHS because levels of pay, working conditions, employment security and career development were inferior at YOTS. She was convinced she would be redeployed into an unsuitable position and would have not have been able to her to look after her children. She did not want to resign but felt she had no option.

40 Ms Biviano deposed that Ms Gilkison told her that after 28 June that there would be no work available for her and gave her a notice of resignation form. She also told her they needed to have finalised the Unit accounts by 30 June and that if she wanted to be paid out annual leave entitlements on resignation she had to fill out the form. She had applied for a position with YOTS in June and because she had been told she could not work for SSWAHS on a part-time basis at the same time, she applied for a full-time position with YOTS. She felt she had no option but to resign, she did not want to do this, felt pressured and intimidated and thought she would be put in an office, filing, on hours she could not work because of her children.

41 Ms Van Luu deposed that of the positions on the list, only one seemed appropriate and it required hours that were impossible for her because of her family commitments. She understood that if she didn't volunteer for one of these positions she would be transferred to something over which she had no control such as filing or something that required very limited skills. A blank resignation form was left in her pigeonhole. She felt she had no option but to resign but did not do so until 27 June, as late as possible, because she hoped an appropriate job with the Area Health Service would come up. She was also concerned about pay and thought she would not get paid. In addition she was concerned she would be required to attend work during normal business hours and would not be able to look after her daughter.

42 Ms Kristic was the one person who actually applied for one of the positions and attended an interview. However she deposed that after the interview she was told by Ms Gilkison that she didn't get the job because she didn't have experience with multicultural health and was handed a resignation form by her. She felt there was no way she was going to be redeployed to a job that used her skills and was sure she would be transferred to some meaningless job or one a long way from home so that she would resign. She felt pressured to resign and felt she had no option but to do so. She also deposed that staff were advised there was no funding for their positions after 30 June 2005.

43 There was extensive cross-examination of the applicants which can be generally summarised (and I only refer to issues I consider relevant) as follows:
· They conceded that SSWAHS organised both a résumé writing course and a "meet and greet day" with YOTS and, albeit grudgingly, acknowledged that this was a benefit to them although they did not see them as "steps" taken to assist in redeployment.
· However they generally disputed that SSWAHS arranging for them to have priority interviews with YOTS was a positive move and a benefit, on the basis that they understood that other interested applicants for the positions were interviewed on the same day and therefore they did not have any priority of being interviewed ahead of anyone else. They also still had to meet the essential and desirable criteria for the positions which were obtained on merit rather than through any effort of SSWAHS.
· They all indicated that they did not ask the HSU for a copy of the displaced persons policy.
· Ms Burchett said that whilst she had internet facilities at home she had not thought of looking on it for the policies and procedures of the Area Health Service and the Health Administration Corporation. She had asked Mr Hoskins who was their co-ordinator at the time to get it for them but had not followed it up with the Union.
· They agreed that they had a role with SSWAHS until 30 June and were not displaced until after that date.
· They all ultimately acknowledged that if they hadn't taken a job with YOTS that they would have continued to have a position with SSWAHS although they didn't know what that was and it may have involved filing or administrative work but it would not have suited their particular individual circumstances.
· They acknowledged that it may have taken some time for SSWAHS to find them a substantive position and in the meantime other work would have had to be provided and SSWAHS were prepared to do that.
· If they accepted a job with YOTS (as distinct from only being offered a job) then SSWAHS had no obligation to them as displaced persons.
· Applicants such as Ms Burchett wanted to keep her options open and continue to work for SSWAHS as well as YOTS. She had done casual work for other organisations whilst working for SSWAHS and was aware of other staff who had done the same.
· They agreed that if they carried on working for SSWAHS they would have been paid. Although Ms Burchett said that she was told by Ms Gilkison that she needed to resign before 30 June to receive her entitlements as there would be no budget for the Induction Unit after that. Ms Kristic was also of the belief and had been told there was no funding for the Unit after 30 June but also acknowledged she would have been paid by SSWAHS if she had remained an employee.
· They agreed that they did not stick around and find what would have happened after 30 June and that other staff members were still employed by SSWAHS.

44 Mr Driver's evidence generally covered the issues concerning the employment status of the applicants and in particular the issue of permanency (the chronology of which is set out in the "Background and Chronology" above), as well as the issue of redeployment.

45 He deposed that it was the Area Health Service's responsibility to place the displaced permanent employees at their existing hours of work. There was no intention to either increase or decrease their hours of work but to maintain them. There was nothing to prevent the YDCIU staff from applying to be appointed to vacant positions either within or outside SSWAHS which would have resulted in the employee working a greater number of hours but that was a matter for the employees themselves. In the event of a position not being available on the date the Area Health Service ceased administration of the YDCIU, functions would be given to those displaced persons until a funded position, suitable to the employee and having regard to their qualification and experience, could be identified

46 It was Mr Driver's view that if the employees obtained employment with YOTS, with the assistance of SSWAHS, at the same number of hours as they were working at the YDCIU, then SSWAHS could be seen to have assisted in the provision of adequate alternate employment. If such employment was not obtained SSWAHS would provide the employees with ongoing employment consistent with the number of hours they had worked in the YDCIU.

47 There had been nothing to prevent those employees now employed at YOTS from applying for externally advertised positions in the SSWAHS.

48 Neither Mr Driver nor any the other SSWAHS witnesses could recall any of the applicants raising any comments about their child-care arrangements during the discussions relating to redeployment.

49 Mr Driver opposed re-employment as being impracticable. All applicants were given the opportunity to work in other positions in SSWAHS as an alternative to their taking up employment with YOTS. They declined this offer and elected instead to accept employment with YOTS. For the Commission to award re-employment of the applicants in these circumstances would amount to a "windfall gain" to the applicants particularly in circumstances where they chose not to progress the option they had to remain as employees of SSWAHS and where they were free to apply for externally advertised positions within SSWAHS.

50 On the issue of making some YDCIU staff permanent in September 2004, Mr Driver conceded that the letters that were sent to employees did not contain, in writing, a clear statement of an offer of permanent employment. There was communication with the HSU, who had raised the issue and Mr Driver assumed the Union then notified employees. However, at meetings that were held, it was certainly clear that the employees were told that they were permanent employees of the Area Health Service.

51 Mr Driver acknowledged that prior to September 2004 the Area Health Service had regarded the employees as "exempt employees" (that is temporary employees engaged for a period in excess of 13 weeks). It was the inquiry by the HSU that led them to review contracts for a number of employees who as a result were then classified as permanent employees.

52 He agreed that in the event that those employees had been classified correctly as exempt employees then SSWAHS would not have had any obligation to them under the Displaced Employees Policy. However he did not accept that up until 30 June, the Area Health Service treated those employees as exempt employees and didn't accord to them the same privileges as applied to proper permanent employees.

53 Mr Driver explained that "a windfall gain" arose where the Area Health Service would have engaged employees at whatever hours of work they had been working previously and they would have also had additional employment with YOTS that would have increased the hours in which they were employed generally. It was the Health Service's responsibility to find employment for the people who wanted to stay with the SSWAHS. There was nothing to stop any of those seeking other employment, subject to policy, but the responsibility of SSWAHS was not to give them a gain.

54 In cross examination Mr Driver acknowledged the following in relation to NSW Health's Managing Displaced Employees Policy (Exhibit 19):
· He could not recall whether or not he provided a copy of the policy to the staff at the YDCIU.
· If employees elected to take up employment with the NGO that was a matter for them and then that ceased the Area Health Services obligation to find them an alternative position.
· Up until 30 June they were covered by the Displaced Employees Policy.
· He could not say what would have happened in the event that an employee had obtained employment with YOTS and had not resigned their employment with the Area Health Service as he could not go back in time and decide now what would have been done in those circumstances.
· Employees had the right to elect whether to go with the NGO or stay with the Area Health Service.
· The Area Health Service made the decision to no longer administer the YDCIU in about February 2005 as a consequence of the tender process.
· There were still functions for the employees to perform as at February 2005 but he agreed that if an employee had been declared displaced it didn't mean they stopped working on that day. It just meant an intention that the function would no longer be filled in the future.
· In that event the positions should have been declared displaced or excess as at February 2005.
· Employees were not notified in writing until June 24 that they were displaced.
· There were no voluntary redundancies to be paid.
· There was no specific redeployment programme for the YDCIU.
· They did not make a decision based on the family responsibilities or the gender of the employees.
· He was aware that a number of the employees were shift workers, but at the time redeployment issues were being discussed family responsibilities had not been raised at any of the meetings he was apt.
· He was not aware that there was any obligation on the Area Health Service to look for shift work positions. In looking for redeployment positions it was necessary to look at the availability of positions and then look as to the roster of hours of those positions and what shifts were required to be worked.
· He understood that of the number of positions which were identified and conveyed to the employees at the YDCIU, there were no shift work positions available.

55 Mr Driver indicated in relation to Exhibit 20 that it was a timeline prepared by YOTS, it was not a document prepared by the Area Health Service. However he agreed that there was nothing in the document to suggest that priority was to be given to internal applicants as against external applicants in offering employment at YOTS.

56 Mr Driver maintained that the Recommendation of DP Grayson on 10 May 2005, was primarily in respect of the then 4 temporary employees remaining at the YDCIU as the Area Health Service had already made a number of the other 15, permanent employees. The Recommendation was formally accepted about 9 June. Mr Driver conceded that it took some time for the Area Health Service to make its decision having regard to the processes that applied. However there was no intended delay.

57 Mr Driver said the list that was prepared identifying employment positions in late June 2005 was a list of available positions at the time which were considered suitable for the staff. Had the employees not taken up those positions the Area Health Service would have continued to work with them to find alternate employment for them.

58 In response to a question from the Commission, Mr Driver indicated that within SSWAHS there were a number of positions in hospitals that worked shifts such as nurses, doctors, some cleaners and catering staff and so forth. There were a number of services which operated Monday to Friday and when looking at the availability of suitable positions for displaced staff they had to have regard to their qualifications and experience and look at what functions they might have been performing in the past to see what functions might be performed in the future. They tried to place people into funded vacant positions. If there weren't vacant positions they would keep them on in a supernumerary capacity.

59 He acknowledged that people could have second jobs in the Area Health Service and that there was a process for that which required approval. In relation to the issue of election between staying with the Service in a position or taking up the position with YOTS, the obligation was discharged once they had gained employment with YOTS at the number of hours at which they had been employed previously by the Area Health Service.

60 Mr Noone deposed as to his responsibility for co-ordinating the process of assisting YDCIU staff to find suitable alternate employment in the lead-up to 1 July 2005. During this process YDCIU staff were given the options of continuing in permanent employment with SSWAHS or seeking employment with YOTS.

61 He said that the applicants had had over a year to seek suitable employment either within or outside SSWAHS. From about September staff were informed during staff meetings that they would be able to apply for positions with the NGO and that if they did not apply or were unsuccessful they would be placed with the SSWAHS. He recalled that the preference of many staff was to seek employment with YOTS because they were skilled in the work which they had been performing with the YDCIU.

62 He acknowledged that he informed staff that if they were successful in obtaining a position with YOTS on at least the same number of hours then they would not be regarded as displaced employees and therefore they would not be eligible for redeployment to another position within SSWAHS.

63 He confirmed that on 21 June 2005 all staff attended a staff meeting and were provided with the list containing 12 vacant positions matching the skills and qualifications of at least some of the staff. Some of those positions involved shift work and others were Monday to Friday. The list of positions and job descriptions were made available to staff that did not attend this meeting. Staff were asked to nominate which positions they were interested in.

64 He could recall being asked by staff about what type of work they might be redeployed to do if they were not successful in applying for a position with YOTS or one of the vacant positions on the list. In response to that question he could recall informing staff with words to the effect:

"...You will be provided with meaningful work within South Western Sydney Area Health Service until a suitable position can be found,...All reasonable effort will be made to find positions that match the staff member's qualifications and skills, however, you may be required to perform office duties, until a more suitable position can be found".

65 He denied pressuring any YDCIU staff to apply for work with YOTS or to resign from SSWAHS, nor did he ever witness any other staff of the respondent pressure YDCIU staff to either apply for work with YOTS or resign from their employment. At all times staff were given information regarding their employment status and options, and all reasonable efforts were made to provide staff with suitable alternative employment. In relation to advising staff that they may be required to perform office duties until a more suitable position could be found, he said this was always intended to be an interim arrangement until a position more aligned with the staff member's skills' set could be found.

66 He was surprised by the request of some staff to remain with SSWAHS and to also take up employment with YOTS, as they would not require positions with SSWAHS if they were re-employed in their existing roles with YOTS.

67 It was not Mr Noone's understanding that the Recommendation of DP Grayson affected employees that had already been made permanent prior to that Recommendation. He had not seen its terms.

68 He understood the Area Health Service's obligations were met in the event that employees obtained other employment with YOTS because in effect they were keeping their old positions. It was a new employer but it was the same work, the same job, just with a different employer responsible for managing the facility.

69 He was aware that the job offers to staff were for fixed term contracts and agreed there were different conditions applicable. However he said there were greater career opportunities within the NGO because YOTS managed a fairly large service, providing treatment for young people, for which they were trained. There were greater opportunities for other positions within that organisation within the field in which the staff operated, working with young people who have drug and alcohol problems.

70 There wasn't any other residential facility within the SSWAHS for young people with drug and alcohol problems. There were health education worker positions, and some vacant positions in that area which he listed in the document, but most of the health education worker positions required tertiary education as a pre-requisite.

71 Mr Noone expected staff to resign if they obtained employment with YOTS because they were gainfully employed in the same jobs they already had, just with a different employer. It was the same work, at the same location, but he agreed it was under different conditions with no continuity of service and on a fixed two-year contract. He was not aware of any probationary period.

72 He understood the Displaced Employees Policy to provide that if they obtained a position on a lesser number of hours per week then they could have a claim to be displaced to the difference in those hours with the Area Health Service. As he understood it if a staff member hadn't resigned and had taken up a position with YOTS on a similar number of hours, but not in breach of their contract so they could fulfil their contractual terms, their employment would cease, they'd be terminated.

73 He had commenced working on compiling the list of vacant positions about two weeks before the meeting on 20 June. He was not aware that the applicants worked predominantly night shifts at the YDCIU. He was not directly involved in the rostering arrangements at the YDCIU.

74 Three positions on the list involved shift work - the HEO position with Corella Drug Treatment Service and the two positions with the Opiate Treatment Program. The Corella job involved night work as part of a rotating roster. The other two involved no night work but weekend work. He was not aware of there being other positions in the Area Health Service with night shifts, available for people with those skills.

75 He did not consider that the list of the 12 positions that he identified exhausted either his or the Area Health Service's obligations to find other positions for the employees.

76 He had arranged the interviews for the vacant positions on the list and arranged the interview for Ms Kristic however he could not recall saying anything about the fact that she had accepted a job offer from YOTS and denied the reason for speaking to Ms Matthews (the person concerned) was to ensure that she knew that Ms Kristic had already obtained employment with YOTS. Ms Kristic did not obtain the position because she didn't have the skills required.

77 He acknowledged an e-mail from Linda Gilkison of 17 June 2005 (Exhibit 25), concerned information about the applicants giving verbal acceptance of a position with YOTS. He could not remember exactly when he became aware of that information but denied that he went to the meeting the following week with the intention that those five not obtain redeployed positions within the Area Health Service. He was not actively working to see that they would resign, but agreed that he indicated in a subsequent e-mail that he was "pleased" the issue had been resolved and thanked Linda Gilkison for her work in managing the Unit at the time.

78 Mr Noone maintained that he never encouraged people to resign from the Area Health Service and he wasn't aware of anyone else doing it either.

79 Ms Goodwin (formerly Gilkison) deposed that she was seconded to the position of Youth Drug Court (YDC) Co-ordinator for the YDC Program between April and June 2005 (whilst the incumbent Mr Hoskins was on leave). In this role she was responsible for liaising with NSW Health, YOTS and other agencies regarding the transfer of the YDCIU to YOTS in July 2005. She was also responsible for the provision of supervision to residential youth workers and facilitation of regular staff meetings. She also took over the daily operation of the YDCIU including rostering, payroll, facilitation of the transition process as well as other nonstaff related matters such as case management meetings with residents.

80 She also generally deposed as to much of the factual background dealt with in the evidence of Mr Driver, Mr Noone, and Ms Nesire.

81 She could recall advising YDCIU staff in late May or early June 2005, words to the effect:

"...The options for staff are to work with YOTS if your application for employment is successful, or alternatively, if you are not successful or you do not want to apply for a position with YOTS, you will be given a role within the Area Health Service.."

82 She also confirmed attending the June 2005 meeting at which Mr Driver and Mr Noone advised YDCIU staff on more than one occasion that they could either take up employment with YOTS or remain with the Area Health Service and be redeployed to another permanent position. She also recalled during meetings with the staff in June Mr Noone advised them that if they stayed with SSWAHS and did not have a position to go into on 1 July 2005 they would be given meaningful roles until a suitable position could be found.

83 She was aware of the extensive work done by Mr Noone to locate meaningful jobs and arrange interviews for staff in the lead up to the transfer of the YDCIU to YOTS. In May 2005 she had sent staff a "Feedback Form Regarding Relocation within SSWAHS" which requested staff to provide information about preferences with regards to the type of work, location, and working hours.

84 In the lead up to the transfer of the YDCIU to YOTS, staff were given the opportunity to apply for vacant positions. However it was her recollection that Ms Biviano, Ms Van Luu, and Ms Burchett had turned down the opportunity to attend any interviews. Ms Burchett and Ms Van Luu had initially agreed to attend interviews for certain positions but subsequently cancelled them. Ms Kristic was initially interested in a role with Multicultural Health however as she did not meet the essential skills criteria that she was unsuccessful in securing this position.

85 Ms Goodwin was not surprised when they cancelled the interviews because she was aware that they had already accepted positions with YOTS. She sent an e-mail to Mr Noone dated 24 June 2005 (Exhibit 34) in which she indicated that "they both need to be honest and say they've got a job with YOTS".

86 Because Ms Biviano had informed her that she would be working with YOTS she requested a written resignation from her on 28 June 2005. She also needed to finalise termination payments prior to 30 June 2005 due to the end of the financial year. As responsibility for the YDCIU had been transferred to YOTS from 1 July 2005, SSWAHS did not receive funding in the following year to cover additional payments beyond that time. The pay office could not process termination payments without the appropriate paperwork. She did not pressure Ms Biviano into resigning. Ms Biviano indicated she had not been happy with the jobs offered.

87 All four applicants were offered exit interviews and refused them. There was never any intimidation for staff to resign - the only pressure came from trying to finalise an outcome by the 30 June deadline.

88 She maintained that SSWAHS was willing to redeploy YDCIU staff to suitable alternative positions but could not guarantee that the staff member would be given the exact same shifts that they had worked at the YDCIU. The Policy on Managing Displaced Employees did not require that displaced employees be given the same shifts. As the staff were displaced workers from a service that was unique and was ending, it was difficult to find comparable roles as far as hours were concerned. However all efforts were made to provide roles that were in a related field. Where staff were given a permanent position with YOTS this was generally considered by staff and management to be a good outcome because it meant that they would be able to continue working in a similar position.

89 She denied telling Ms Kristic that she didn't get the job (after the interview) and that here was a resignation form. She recalled having a detailed discussion with her about her options and being advised that she had accepted a position with YOTS before she went for the interview. Ms Goodwin asked her to complete a resignation form if that was her intention, which she did. Ms Goodwin said that Ms Kristic only applied for the Multicultural Health position when there were other positions made available that met her skills' criteria. Other YDCIU staff applied for these positions, were placed in them, and were doing very well.

90 Ms Goodwin disputed Ms Kristic's suggestion that she told her if she didn't resign by 30 June she would not get her leave paid out as there was no funding for it. Ms Goodwin didn't have the authority to make those kinds of decisions. They were her entitlements and she was entitled to keep her annual leave provisions. The entitlements of the other employees of the YDCIU who elected to stay in employment with SSWAHS were transferred to a different cost centre and therefore to a different budget source.

91 Ms Goodwin said she provided staff with their options which were to take up a job with YOTS or remain with the Area Health Service. The option of obtaining employment with YOTS and remaining with the Area Health Service was not discussed by anyone although she could recall employees asking whether or not they were able to obtain employment with YOTS and stay at the Area Health Service. She said they wouldn't be able to have two jobs at once, that was her view in a practical capacity. She thought the policy was that you would have to have approval to do so via the HR department.

92 Much of the cross-examination of Ms Goodwin was on areas outside her knowledge or responsibility and therefore I do not consider it particularly relevant to detail it nor does it particularly assist the Commission. For example she was asked a number of questions on issues arising from the Recommendation of DP Grayson but was not really aware of the details of this matter. She was also not responsible for implementing the Managing Displaced Persons Policy although she was aware of it. That was a matter for Area HR.

93 Ms Goodwin acknowledged that she prepared the feedback forms in relation to the proposed relocation of staff. She did not specifically ask whether staff had any special issues that needed consideration in those forms. There might have been a comment section she thought.

94 The completed forms of the applicants were tendered as Exhibits 30 (Ms Burchett), 30a (Ms Van Luu) and 30b (Ms Kristic). They indicated that they were due on 9 June 2005 and had space for information to be provided under the following headings:

Preferred Type of Work: e.g. Youth Work, Counselling, Administration

Harm Reduction etc.,...............

Preferred Location: ............................

Preferred Hours of Work: .......................

95 Ms Goodwin was asked whether she thought that showing the staff 12 positions nine days before (1 July) and advising them that they've got to make a decision within those nine days could be defined as pressure. She responded that "the jobs provided to them were options if they didn't want to go to those jobs they could still be staying within Sydney South West. These were specific jobs that they could go into. They had a job. Beyond 30 June they had a job."

96 She could not comment on what would have happened if they had applied for and obtained a position with YOTS and she hadn't received their resignation. She would have had to seek advice from Area HR on that.

97 The Commission asked her why she considered employees taking jobs with YOTS had to resign and why it was necessary to seek a resignation. She responded that if somebody was going to the employment of another organisation, in order to finalise their employment with Sydney South West, then they would need to have a signed resignation form from them.

98 She told staff who were transferring to YOTS that they needed to resign by 30 June. She sought resignation forms from them if they had advised her that they were moving to YOTS.

99 Ms Goodwin denied that she advised staff there would be problems paying out their leave entitlements or that they wouldn't be paid their entitlements if they didn't resign by 30 June. However June 30 was a relevant date in the payment of leave entitlements because it was the end of the financial year and the transfer of ownership to YOTS. She indicated that if the staff were going to YOTS then legally you had to draw a line in the sand as far as who they were employed with and so they finalise their payments on 30 June because they didn't have ownership of the Youth Drug Court after that date if they were going to a new employer after that date then that was the date they were working towards finalising all payments by.

100 If an applicant, such as Ms Burchett, had not provided her resignation form until 1 July, Ms Goodwin could not say on what date she would have received her termination payment. She assumed it was the next pay period but she couldn't confirm that as HR prepared the payments. Termination payments operated outside the normal pay cycle so she couldn't advised of a particular date.
101 The YDCIU had funding until 30 June 2005 but any underspent funds would not have had to be returned. She understood that unspent funds would more than likely be assumed by the Area Health Service. However they were keen to pay the money out of the YDCIU funding otherwise it would have had to go to other Drug Health Service cost centres.

102 She was not aware of any contemplation by the Area Health Service to offer voluntary redundancy to any of the staff members.

103 Ms Nesire generally deposed as to factual background matters concerning the YDCIU, its management, its transfer to the NGO as well as general staffing matters and issues surrounding permanency. Many of those matters simply confirmed evidence from both Mr Driver and Mr Noone but in some instances in more detail and with relevant documentation attached (as outlined in summary form in the Chronology above).

104 She deposed that when she commenced in her role as a Service Director for DHS in 2001 it was very clear to her and to staff that the management and employment of staff within the YDCIU was based on temporary funding and that the model was a pilot program and under the discretion of the Commonwealth government. Because of this all staff appointed within the program were initially employed on temporary employment arrangements.

105 She deposed that in approximately September 2004 due to an administrative error there were a number of YDCIU staff whose temporary contracts had been allowed to roll over without being replaced by a new or extended contract. Where this had occurred SSWAHS advised employees that in the event that a transfer to the NGO was not possible they would be offered a permanent position with SSWAHS at their existing classification and maintaining their existing employment status (the letters to employees that have previously been referred to). She also deposed as to the industrial dispute proceedings in 2005 which resulted in the remaining staff being made permanent.

106 She deposed that all staff provided with permanency, including the applicants, had the option of staying with SSWAHS. The choice to resign was that of each individual employee.

107 She denied that in discussions with staff the language used in relation to the NGO was that of being "privatised", the language used in all discussions was that the management of the unit was being transferred to an NGO. This was no reflection on the current operations of the Unit but rather a decision at a higher level to increase the involvement of the NGOs in the YDC program.

108 She said that during meetings with staff in 2004 and 2005, they expressed, (both as a group in face-to-face meetings and via their manager) that their preference was to remain with the Unit if possible, and be transferred to the NGO, as they liked the job and were highly committed to the Unit and client group. They requested that she advocate for them on their behalf with NSW Health for this position. While this was not possible, following negotiations, they were offered priority interviews with the successful NGO prior to external recruitment occurring. To her knowledge all staff were pleased with this outcome. At no stage did any staff member (either as an individual or as a group in meetings) advise her that they no longer wanted the opportunity for their continued employment with the Unit, even under the management of an NGO. The staff requested an inservice/presentation and site visit with the successful NGO, which was arranged by the Court Diversion Program Manager.

109 She deposed as to 2 meetings with staff following the Commission's Recommendation on 10 May 2005, regarding deployment options. Staff were advised that as SSWAHS was required to continue to staff and operate the YDCIU until July, in order to maintain safety and adequate staffing of the unit, redeployment would not be actioned until after that date. Planning to relocate staff however commenced prior to this date and staff were requested to provide information (the feedback form prepared by Ms Goodwin) relating to their skills and experience to assist the respondent in finding suitable employment options by 9 June 2005.

110 Staff were advised clearly that while they would seek suitable jobs/positions for them they could not guarantee a continuation of shift work as they were accustomed to. Every effort was made to arrange appropriate alternative work options for all staff and they were advised that it could not be guaranteed that it would be youth, residential or shift work. Staff were provided with the available choices at that time within SSWAHS. While these may not have met all their requirements, the options provided for them were the most suitable vacancies at the time. A number of attempts were made by the Court Diversion Program Manager to find similar work within youth and/or residential services however SSWAHS does not provide the number of services of this type.

111 Staff were always kept informed of future developments and every attempt was made to ensure that all requests for information were responded to as a matter of priority. In matters or instances where they did not know e.g. who the successful NGO was, this was clearly stated to all staff.

112 Staff were advised a number of times that if suitable positions were not found they would remain working within Drug Health Services until a position was found. All efforts would be made to ensure they would be engaged in meaningful work however the work may have included administrative work.

113 It was only necessary for staff who had accepted a position with YOTS to complete a resignation form. This was a normal process for staff intending to commence employment with another organisation and was necessary to insure their final payments and leave entitlements were correctly processed.

114 No staff member was forced to resign, all staff made their individual choices based on their individual circumstances.

115 Ms Nesire was not sure what would have happened on 1 July if a person, who had applied for and accepted a position with YOTS but had not tendered their resignation to the Area Health Service, turned up for work. She would have gone to HR on that issue.

116 In cross-examination Ms Nesire indicated that in earlier times redeployment of staff of the YDCIU was never discussed. It was always a temporary program and when she took it over it was annualised funding and they were annual contracts to her memory so redeployment would never have been discussed, it was always temporary funding. On commencement the applicants were all employed under temporary contracts and it was through the industrial proceedings that they were then offered permanency.

117 She conceded that it was in an administrative error within the Area Health Service that some contracts weren't renewed which led the Area Health Service, as she understood it, to offer permanency.

118 Issues to do with the Managing Displaced Employees Policy was a matter for HR. One of her responsibilities was trying to find suitable other work for the employees. She worked on the premise that all staff were permanent after May 2005. Before 10 May 2005 she understood that some were still temporary but she was not sure just who. She had not seen the Recommendation made on 10 May 2005 and was not aware of all of its content.

119 Ms Nesire had seen the timeline for transfer developed by YOTS (Exhibit 20). She could not say whether the order of tasks it listed was followed. It was her understanding that that the Area Health Service had agreed with the successful NGO that staff would be given priority interviews and it was her understanding that there they were interviewed and that YOTS kept with that agreement. She conceded the word "priority" might not be correct. They did the best they could to negotiate what they could. What the NGO agreed to and what they ended up doing was for YOTS. She couldn't comment whether a priority interview gave staff an advantage or not. However the fact that they had experience and YOTS were very keen was to her understanding an advantage.

120 In terms of the redeployment of staff Ms Nesire indicated in the discussions she was involved in they were looking at people's skills and their current condition sand hours of work and trying to find things that would suit them and match what they currently had. In that there was contemplation of youth work, residential and shift work which was what they were used to and that' what they were looking for.

121 She indicated that from memory the first thing they requested staff to provide was a brief overview of their skill and qualifications, a mini résumé, so they could match that. As they got closer to the time they tried to match that to existing vacant positions within the Area Health Service. It was mainly Mr Noone that contacted a number of agencies, rang around and actually looked at vacancies and started pulling together that information and liaising and consulting with other managers for interviews to those people. Ms Nesire was only involved on the outskirts of that.

122 All staff were advised that they needed to retain their current position within the YDCIU up until 30 June and they would be trying to find other positions for them within the Area Health Service. There was nothing stopping people from finding another position internally however and Ms Nesire would have been supportive of that. Her main concern was that she had to maintain the operations of the Unit at a safety level because they had young kids in there but she would support staff in any way. If a person had gone off and got themselves another position they would have replaced them with a casual employee to maintain numbers. They would not have sought to deploy any staff member into any other position until after 30 June

123 If a person was resigning from the Area Health Service then they would have to fill in a resignation form, that was the process. If they decided to stay with the Area Health Service they didn't have to fill out a resignation form.

124 Ms Nesire indicated that any unspent money from the YDCIU funds, because it was the ending of a program, would have gone back to New South Wales Health.

Submission

125 Mr Taylor for the applicants, after briefly outlining the factual background, submitted that the central and core issue in the proceedings was whether or not there was a dismissal and whether that dismissal was a constructive dismissal. Each of the applicants signed documents that were entitled "resignation forms" and as such the Commission must determine that there was a dismissal prior to being able to offer the applicants any relief.

126 The relevant principles that the Commission should examine in relation to whether or not there was a constructive dismissal were well known and set out by the Full Bench in Allison v Bega Valley Council (1995) 63 IR 68. The Commission again considered those principles in Ward v Mobile Renovations Limited [2002] NSWIRComm 287 and also Jarvis v Costandi [2005] NSWIRComm 311.

127 It was submitted that in the proceedings it was clear that the resignation of each applicant was the direct result of the action of the respondent. Specifically that if the applicant had obtained employment with YOTS they were required to resign their employment with the respondent and the fact that, if they did not resign then their employment would be terminated. If the applicants obtained employment with YOTS, the respondent would have no obligation to redeploy them into another position with the respondent. The fact that the respondent failed to classify the applicants as displaced persons as required under their policy and in a timely manner, required the applicants to act with unnecessary and undesirable haste.

128 In the circumstances where there was a genuine redundancy of position, the respondent failed to contemplate the payment of voluntary redundancy payments when it knew that was unlikely that would be able to offer the applicants suitable work on redeployment thereby causing and forcing them to resign. The respondent created an environment in which the applicants were required to make decisions under pressure of time and with threats that if they did not resign they would lose previously accrued entitlements.

129 It was also submitted that the respondent created a situation and an environment whereby the applicants were constantly unsure or unclear as to their true employment status and the rights they may have had under relevant industrial laws and policies of the respondent. In so doing that, respondent forced the applicants into a position that if they wanted to continue employment they had no option but to resign.

130 It was submitted that it was simply not correct, as the respondent had consistently maintained throughout these proceedings, that the applicants had an election to make that they could either accept employment with YOTS or alternatively they could remain within the Area Health Service.

131 There was no obligation on the applicants to resign their employment if they obtained alternate employment. There may have been an obligation to resign in the event that they were unable to have filled both jobs, or in the event that the suitable policies of the respondent, as to having more than one position, were not followed. However it was submitted that the mere fact that they obtained employment with another did not discharge the respondent from its obligations at law, under the award or under any of its policies. In support of this position National Union of Workers v United FM Pty Ltd t/as United KFPM [2006] NSWIRComm 112 was cited.

132 It was further submitted that if the Commission found that there had been a termination of employment it then became necessary to determine whether or not that termination was harsh, unreasonable or unjust. For the applicant to succeed they must show that the dismissal was harsh or was unreasonable or was unjust.

133 There were numerous cases to provide guidance as to the meaning of those individual terms and the method that should be used in applying them, such as Byrne & Anor v Australian Airlines Limited (1995) 185 CLR 410; Bankstown City Council v Paris (1999) 93 IR 209; Williams v Pigment Dispersions Pty Ltd [2004] NSWIRComm 268 as well as Jarvis v Costandi. Each term should be looked at individually. In other words a particular dismissal may be found to be harsh but not unreasonable or unjust.

134 The Commission's attention was also drawn to Bankstown City Council v Paris where the Court noted that "in a case where conduct of the employer may satisfy one but not all these heads a positive and specific finding should be made."

135 It was also submitted that the circumstances of the dismissal should be considered in both a substantive and procedural sense. For example the underlying facts may mean that the termination was substantially warranted but procedurally was harsh, unreasonable or unjust. In such circumstances the applicants were entitled to a positive finding. Reliance was placed on Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385.

136 Mr Taylor then summarised the evidence that supported the applicant's contentions that their resignations had been at the instigation of the respondent and the circumstances leading up to and surrounding the resignations in some detail. He also took the Commission to relevant Exhibits in detail during the course of that summary, particularly in relation to highlighting the differences in employment terms and conditions between YOTS and SSWAHS, the issue of the permanency of the applicants and the respondent's witnesses lack of knowledge as to its Managing Displaced Employees Policy and their obligations under that policy.

137 Mr Taylor also indicated during the course of those submissions that there was no doubt that there were always going to be real problems finding suitable positions for redeployment and for these applicants. The displaced persons policy specifically contemplated that situation and said that where that occurred there should be voluntary redundancy taking place. That was rejected out of hand by the respondent.

138 It was the applicant's strong submission that there was a deliberate or at least an obvious attempt by the respondent to make sure that the applicants were unclear as to their entitlements under the relevant law and unclear as to their classification. The relevant evidence to support this submission was then detailed.

139 It was submitted that the respondent's witnesses gave evidence that they simply did not know what would have happened had any of the applicants not resigned, having taken up employment with YOTS, and turned up the following day. It was apparent from the award that the Displaced Employees Policy had application to these workers. This policy was of some substance and the fact that Ms Nesire, Ms Goodwin and Mr Noone all expressed unfamiliarity with that document was consistent with the fact that the respondent acted inconsistently with its obligations under that policy. Only Mr Driver conceded they should have been classified as displaced employees earlier than they were.

140 It was also submitted that the fact that three of the four people who were responsible for providing the applicants with advice as to their employment, were unable to say what would have happened had they not resigned, spoke volumes. Only one person did provide an opinion as to what would have happened had they not resigned and he spoke the truth and that was that they would have been terminated. Their employment was in fact ended by the campaign of the respondent to create a situation that simply wasn't real, forcing them to resign their employment.

141 Mr Taylor also took the Commission in some detail through the Managing Displaced Employees Policy (Exhibit 19), covering the relevant definitions and provisions applicable to support the applicants' submissions.

142 It was further submitted that given the breach of procedures in relation to their employment, in the event that the Commission found there was a termination, it followed very clearly that such termination was harsh, unreasonable and unjust. That specifically arose from the failure to follow the Managing Displaced Employees Policy and the failure to offer suitable employment in anything like a timely manner.

143 On the issue of appropriate remedy, each of the applicants sought redeployment. Clearly in the circumstances reinstatement to the substantive position they held was not available and therefore redeployment within the Area Health Service was an appropriate option. Each applicant should be put back into the position that they had been in before 30 June 2005 had they not been forced to resign.

144 Each of them said that they would have preferred to have stayed in the Area Health Service had they been sure they would have been able to obtain suitable employment on equal terms or in the alternate had they been able to maintain the work. It was particularly clear for those who were employed by YOTS on a part-time basis. The only issue that would arise with their employment with YOTS was in the event that they ran into contractual problems in terms of hours or if they were not provided approval on reasonable grounds.

145 In making that application it was also submitted that the Commission should make an order for compensation equivalent to the amount lost over the 12 month period and the difference between the wages. The Commission should also make an order in relation to the restoration of accrued entitlements to long service leave and the like.

146 In the alternative it was submitted that the Commission should make an order based on what was an appropriate course of action for the respondent in the circumstances of a genuine redundancy, that should have been contemplated in the circumstances of these applicants. The appropriate measure of compensation would be equal to what they would have received under the Managing Displaced Employees Voluntary Redundancy Scheme and would be the following:
· Ms Biviano - 8 1/2 weeks pay,
· Ms Burchett - 13 1/2 weeks pay,
· Ms Van Luu - 17.75 weeks pay, and
· Ms Kristic - 17 weeks pay.

147 In the further alternative the Commission should provide compensation that took into account the substantially reduced conditions of the applicants; the fact that over time they would earn a great deal less than they would have earned had they remained within the public sector; that if they are sacked again they won't have the opportunity to bring a claim for unfair dismissal; they weren't able to take annual leave a period of 12 months and they will not have any more incremental steps to go in their award at the end of next year. In those circumstances an appropriate compensation payment would be 14 weeks pay in relation to each of the applicants.

148 Mr Ginters, for the respondent, elaborated on written submissions tendered (Exhibit 43) and submitted that the underlying concern in the applicant's case in relation to unfairness arose by virtue of the fact that the respondent made available to the applicants and option that they could go and work the YOTS if they so desired or if not their permanency was recognised and they would be provided with a permanent position maintaining their current employment status and classification. That begged the very question that if the respondent had decided not to make that option available but had instead decided to manage those people under the managing displaced employees policy then where did the unfairness arise because there wouldn't have been a dismissal.

149 The applicant's case appeared to be constructed on the basis that the offering of the alternative was what gave rise to the unfairness. That was simply wrong. If the respondent had chosen not to make those options available and managed them in accordance with the policy there wouldn't have been a dismissal. They would have been redeployed as were the other 7 people from the Unit and maybe at some point further down the track, if redeployment options weren't available or were unsuitable there might have been some prospect of a voluntary redundancy occurring then. The difficulty with that proposition was that that was moving into the realms of the hypothetical.

150 The evidence of Mr Noone and Mr Driver was absolutely unequivocal on this point that the 12 positions that were identified were but a starting point. They were the positions that existed at that point in time, but they did not consider that they had exhausted their liability to find those people alternative positions.

151 This matter must be viewed against a backdrop of a no forced redundancies policy and a management of displaced employees circular and policy. There were social obligations placed upon Public Health organisations and State instrumentalities to find these people work, to keep them in work and that was an aim to be lauded.

152 It was submitted that the applications failed at the outset for want of jurisdiction as the Commission only had the jurisdiction to determine the applicants if there had been a "dismissal" (see Police Association v NSW Police (No 3) (2005) 144 IR 150). Per s.83 (5) of the Act there was no dismissal of the applicants applying Clarke v Pittwater RSL Club (1998) 84 IR 309.

153 Mr Ginters also relied on Allison v Bega Valley Council (1995) 63 IR 68 and Cook v CFP Management Pty Ltd [ 2006] QCA 215 in submitting that in no way could be said that the termination of the applicants' employment arose at the initiative of the respondent or that the ostensible act of resignation was, in effect, a response to and consistent with the desire by the respondent that such resignations be forthcoming.

154 To the contrary, the evidence overwhelmingly supported the respondent's contention that the applicants had, at all material times the options open to them of taking up employment with YOTS all if they did not want to take up employment with YOTS or if there occasion for employment with YOTS was unsuccessful, remaining in the employment of the respondent. The respondent had provided written and oral assurances that the applicants would be offered a permanent position at their existing classification and maintaining their current employment status.

155 It was submitted that in the above circumstances it would be wrong for the Commission to conclude either that the applicants were dismissed or, even assuming that they were dismissed which was not conceded, the dismissals were harsh, unreasonable or unjust.

156 Mr Ginters also summarised in some detail, with specific references to transcript, the evidence of the respondent's witnesses supporting those submissions.

157 Mr Ginters also summarised in some detail the relevant cross examination of the applicants that established matters which supported the respondent's submissions.

158 On the issue of redeployment it was submitted that it was clear from the evidence in these proceedings that despite the fact that the applicants were informed by officers of the respondent that they should be looking for alternative positions within the respondent, the applicants did not in fact do so. Whilst it could be accepted that the respondent had obligations in circumstances where its employees were displaced, it must also be accepted that there were reciprocal obligations on employees when they were confronted, as they were in this cases, with genuine efforts by the respondent to minimise the impact of the displacement. These reciprocal obligations on an employee included obligations to genuinely participate in exploring alternatives to displacement. However the applicants took no active steps to explore the possibility of alternative positions within the respondent in the period leading up to 30 June 2005. Reliance was placed on SDA v WD & HO Wills Holdings Ltd [2000] NSWIRComm 98 in relation to this issue.

159 The Commission should not accept the proposition that appeared to be suggested by the applicants that their claim that they were forced to resign from the respondent's employment was strengthened because only a limited number of the 12 positions identified by Mr Noone were shift work positions. It was clear from the evidence of Mr Driver and Mr Noone that the list was just a starting point. There was also the consideration that a number of substantive Health Education Officer positions required the incumbent to have tertiary qualifications which the applicants did not have.

160 Based on the evidence, the fact of the matter was that there were extremely limited opportunities for shift work to be a made available to employees with the limited skill sets and qualifications that the applicants had. It was also the evidence of Mr Noone at that employment with YOTS provided the applicants with greater opportunities for career advancement and development given a focused nature of the work which YOTS performed in the fact that the work was more closely aligned with the skill set and experience of the applicants.

161 There were simply no intention on the part of the respondent to require the displaced employees to work increased or decreased hours. But the possibility that displaced employees would not be required to shift work arose because in reality it was inherent that there were very few services provided by the respondent that operated on a shift system that had positions suitable to the skills set of the displaced employees.

162 The Commission was referred to Notification by BHP Steel (AIS) Pty Limited under s.204 of the Industrial Relations Act 1991 of a question, dispute or difficulty re systems of work in the Packaging, Products Department and another matter, Industrial Relations Commission of New South Wales, unreported, Hungerford J, 19 February 1997 and The Shift Workers Case [1972] AR (NSW) 633 in relation to the issue of payment for shiftwork to compensate for the various disabilities associated with working shifts. It was observed that employees working day work would not experience the disabilities for which additional remuneration for shift work was designed.

163 The Commission could not require the respondent to create positions which were not needed or not part of its operational requirement. Which was not to say that the respondent would not have gone out of its way to seek to accommodate the circumstances of the applicants.

164 It was submitted that the evidence which showed that the applicants "seamlessly transitioned" into employment with YOTS, countered the proposition that the "dismissals" of the applicants were harsh, unreasonable or unjust.

165 It was submitted that it was misconceived for the applicants to rely on an assertion that unfairness was visited upon them because they were not provided with the opportunity to achieve a "windfall gain", that is to remain as employees of the respondent and somehow also except a position with YOTS, and that that was a foundation for the claim that there dismissals were harsh, unreasonable or unjust.

166 It was further submitted that the position of the respondent during the period leading up to the transfer of services from the YDCIU to YOTS was, quite rightly, that if YDCIU employees were successful in gaining a position with YOTS that was acceptable to the applicants, they would not be redeployed into another position with the respondent. This position was taken against a backdrop whereby the respondent had assisted the YDCIU employees with the process of obtaining alternative employment.

167 It was submitted that the applicants were required to complete the notice of resignation forms so that human resources processes, such as the processing of termination payments, could be completed prior to the completion of the financial year. This was in particularly important in circumstances where no funding was provided to the respondent for the YDCIU for the 2006 financial year. This did not assist the applicants in their assertion that this process meant they were pressured into resigning.

168 The applicants were not pressured or induced into resigning their employment. In this respect it was of significance that seven other employees of the YDCIU who were in the same position as the applicants, did not consider that they were pressured or induced into resigning their employment with the respondent. Rather as was the entitlement of the applicants, they elected to remain in the respondent's employment post which Bertie June 2005 and, as the evidence disclosed, had been placed into alternative positions and "were doing very well".

169 Mr Ginters also addressed the issue of the relevance of the Government Cleaning Service Cases (Re Government Cleaning Service Award (No. 2) (1994) 55 IR 150 and Re Government Cleaning Service Award (No. 3) (1995) 59 IR 348) which had been raised by the Commission for consideration of the parties early on in proceedings.

170 He submitted that those decisions did not assist the applicants. To the contrary, they supported the respondent's contention that this dismissals if the Commission were to so find that such had occurred, were neither harsh, unreasonable or unjust. At first instance Schmidt J. concluded at p.223:

"... A decision to privatise a government instrumentality or to sell a business, ordinarily will lead to the dismissal of the employees of the instrumentality or business concerned. It seems to me that it will be an unusual case where, without more, the dismissal of all the affected employees will be found to have been harsh, unreasonable or unjust.

171 The decision was not overturned on appeal, and could be read present purposes to cover a transfer to an approved NGO. Similarly, in the present circumstances the commission would not, without more, concluded that the "dismissals" but the applicants were harsh, unreasonable or on just

172 Mr Ginters went on to highlight those aspects of the decision that were materially relevant to the present applications:-
· Schmidt J. concluded that matters to be considered included that there was no consultation about the actual decision to dismiss the GCS staff and there was a refusal to make the alternative of redeployment available.
· This contrasted starkly with the current applications where there was a lengthy period of consultation with affected employees of the YDCIU and the availability of redeployment within the respondent for displaced persons, which was acknowledged by each of the applicants.
· Schmidt J. also concluded that the fact that continuing employment was assured even though with a new employer was a matter which must be taken into account. (at p.222) similarly in relation to these applications the commission must have regard to the fact that continued employment was assured if the applicants elected to remain in employment with the respondent after June 2005 which was accepted by the applicants in cross-examination.
· Schmidt J. also concluded (at p. 225-6) that the strongly held opinions of the employees concerning their refusal to take up offers of employment because of their concerns about the nature of the work they may have been required to perform for the new employer did not mean that the dismissals and all the circumstances were harsh unreasonable or unjust and commented on those beliefs arising without the benefit of any experience of work with the new employer.
· This was analogous to the assertion pressed by the applicants that they were pressured into resigning because of assumptions they made as to the lack of suitable redeployment opportunities with the respondent. The Commission would not conclude on the basis of the unsubstantiated beliefs or opinions of the applicants that suitable redeployment opportunities would not have been made available to the applicants.
· To the contrary the fact that other YDCIU employers were appointed to other positions with the respondent and are "doing very well" was cogent evidence that the opinions and beliefs said to have been held by the applicants were misplaced.
· Schmidt J. also considered differences in the relevant award coverage applicable to the employees in question as between the public and private sector.
· It was not to the point that the SACS which in the employment at YOTS may contain certain provisions which differed from those contained in public health awards. As per Schmidt J., the Commission would not accept that there was anything deficient in the SACs Award or inappropriate for the industry to which it applies.
· The fact that the SACS Award may be different in some respects to conditions in public health awards did not make the SACS Award inadequate or inappropriate for the applicants in their new employment nor did make the "dismissals" from their employment with the respondent harsh, unreasonable or unjust.
· Similarly the Commission would not be satisfied that any differences in the work which may flow from services being provided by a YOTS as opposed to be YDCIU were such as to make the applicants "dismissals" from public employment harsh, unreasonable or unjust.

173 It was also submitted that it was not relevant that Schmidt J. made a redundancy award and thereby awarded the dismissed GCS employees redundancy payments. No application has or can be made for an award in the present circumstances (see section 11 of the Act). Also the clearly articulated policy of the Government (and SSWAHS) was one which had an emphasis on redeployment with voluntary redundancy only been available where redeployment or transfer would be impracticable.

174 It was submitted that in the laudable circumstances where the respondent's primary obligation was to maintain employees in employment when they were displaced, and where redeployment was made available to each of the applicants, it would be right erroneous for the Commission to conclude that the "dismissals" were harsh, unreasonable or unjust.

175 In relation to the Recommendation of DP Grayson, it provided for the respondent to facilitate the continuing employment of persons in the Unit. That was exactly what was done, as employees were advised that they would continue to have a permanent position post 30 June if they did not take up employment with YOTS. The second part of the Recommendation was that all employees be treated in a fair and consistent manner and that was exactly what the Area Health Service did. The respondent facilitated the ongoing and continuing employment of the applicants by guaranteeing them that post 30 June if they didn't go across to YOTS they stayed with the respondent and their status would be maintained. It was also made abundantly clear in relation to Ms Biviano whose status was at that point in time was uncertain.

176 There was also no indirect discrimination of the applicants. The Unit in toto closed. Indirect discrimination arises where there are differential outcomes. That point was not arrived at because the applicants did not allow the respondent the opportunity to find them positions because they resigned and went to work for YOTS.

177 On the issue of remedy it was submitted that if the Commission was against the respondent's primary contention is as a matter of discretion and consistent with the principle that "a fair go all round" be accorded to both employer and the employees concerned the commission would decline to grant the applicants a remedy. In support of this submission Re Loty and Holloway v AWU [ 1971] AR (NSW) 95 was relevantly cited.

178 The applicants all sought re-employment to another position with the respondent or alternatively monetary compensation. That begged the question that they now sought re-employment or redeployment to the Area Health Service the very option that they were provided with in June/July 2005 and which they all declined saying they didn't want a bar of that. 12 months later they come before this Commission and say they now want what was offered to them before but in circumstances where they had had the benefit of continuous work for the 12 months. They also sought back pay for the entire period. That would just not be accepted by this Commission.

179 It was also submitted that the conduct of the applicants weighed strongly against the granting of discretionary relief by the Commission. Examples of evidence of that conduct were given including that the applicants all accepted the offers of employment from YOTS. Three of the applicants declined to attend interviews for alternate redeployment positions and one applicant was unsuccessful following an interview. All declined exit interviews. They all "seamlessly transitioned" into employment with YOTS.

180 Re-employment of the applicants was impracticable for the reasons identified by Mr Driver, in that for the Commission to order the re-employment of the applicants in these circumstances would amount to "windfall gain" to them, particularly in circumstances where they previously chose not to progress the option that they remain as employees of the Area Health Service.

181 Mr Ginters also replied to the submissions of Mr Taylor which may be summarised as follows:
· Focus was placed on the need for the hint of pressure or a threat in cases of constructive dismissal. Those notions of pressure or threat from the employer were demonstrably absent from the circumstances of this case and on that basis the Commission would conclude there was in fact no constructive dismissal.
· It was put that if applicants obtained employment there was a requirement that they resign or if not they would be terminated. The evidence didn't support this, only Mr Noone suggested it might be a possibility. The evidence was clear that those in authority to make the decision in HR weren't sure of the position. It was a hypothetical put to people which didn't bear itself out. The Commission was asked to draw conclusions in circumstances where the situations didn't occur.
· It was put that the resignations were the result of the fact that there was no redeployment. That issue had been addressed at length in the respondent's submissions. It was clear that redeployment opportunities were made available, there was some initial offers and there was the ongoing obligation to find work.
· It was suggested that employees were not displaced. The evidence of Mr Driver and Exhibits 13 to 16, (the letters of June 24) indicated that that proposition was not correct.
· In relation to the requirement that the applicants had to act with haste. They were given at least nine days in which the initial set of offers were provided to them to make a decision about whether they accepted those initial offers or went to YOTS. However they all knew that they had ongoing employment with the Area Health Service. They were not required to act with haste.
· Reliance was placed on no voluntary redundancies being provided. The Managing Displaced Employees Policy confines the circumstances in which voluntary redundancies are an option as being where individuals as a result of their position no longer being required by the employer and there being no likelihood of any redeployment to another position within the public health system. The applicants left before they could seek to avail themselves of the opportunity to find a redeployment position within the Area Health Service.
· The suggestion that the environment in which decisions was made was one where they were forced to make such decisions under pressure was rejected. The applicants had the opportunity to look at other work. They were placed under pressure and knew full well what options were available to them.
· Submissions were made that there was a lack of clarity as to employment status that was contrary to the way the applicants ran their cases that they were permanent employees which was clearly disclosed by the evidence and as such had a guaranteed of that ongoing classification and maintenance of employment status.
· The United Workers Case was under appeal. That case concerned the private sector and there were fundamentally different circumstances which arise in redundancy situations in the private sector and public sector by virtue of the no forced redundancies policy.
· It was suggested that employment with YOTS was on substantially inferior terms, that was not established by the evidence.
· In relation to procedural fairness there was an assumption made by applicants coming before this Commission that procedural fairness issues represent a panacea to an unfair dismissal case. That was not the case and was not established in Antonakopoulos. The threshold wasn't crossed simply because there may have been some defect or anomalies in relation to the circulation of the managing displaced employees policy. That did not make the "dismissals" harsh unreasonable or unjust
· Reference was made to the fact that the applicants were on fixed term contracts at YOTS. If that was of real concern that the alternative option was to stay with the area health service where they were not on a fixed term contract.
· An issue was made about the choice. The Area Health Service position was that it had an obligation to maintain persons in their existing employment status. The obligation was not to provide a free gain in those circumstances where the Unit was closed. To find that a dismissal was unfair because it did not allow employers to improve their circumstances where they were assured a permanent position at their existing classification and status would be erroneous.
· There was no evidence to support the characterisation of the applicant's case as being one where the respondent had adopted a "campaign to force resignations". That was not borne out by the fact that 7 of the 12 people didn't resign they remained where they were.
· Re-employment was impracticable in the circumstances of this case and also did not warrant an award of compensation.
182 Finally it was submitted, on the basis of all of the above, that there were no "dismissals" for the purposes of the Act or alternatively the dismissals were not harsh, unjust or unreasonable and therefore the applications ought to be dismissed.

183 Mr Taylor in reply rejected the submissions concerning the respondent's obligation as being not to allow a "windfall gain". That wasn't an obligation the respondent had and was not relevant to the conduct of the respondent.

184 The respondent was an employer of the applicants who had permanent positions and as such it had obligations in respect to its employment of them. The obligations didn't go to considering whether or not a windfall gain existed. The respondent should simply have met its obligations under the policy and under the awards to persons whose position is no longer existed.

185 Reference was made to the submissions that were critical of the applicants attempts and the hypotheticals particularly in relation to what would have happened if those staff members had stuck around. There was no need to look at hypotheticals as there was a good example of as to what happened on the evidence concerning one of the employees who remained SSWAHS. He stayed and he needed to do shifts because of his personal circumstances. The response of Mr Driver in Exhibit 22 was "it is now a matter for him to either take up the offer or conclude his appointment with the Area Health Service.

186 That did not show a benevolent attitude and the idea that there was that benevolent attitude simply didn't exist on the facts. The applicants had been to the Commission twice in order to secure permanency. It wasn't an environment or an atmosphere of benevolence, it was an environment and atmosphere of distrust. There was a failure consistently to provide letters.

187 It simply didn't stack up to say they should have waited and everything would have been fine. The evidence of the applicants was that if they didn't accept the position at YOTS on 1 July the position disappeared. In those circumstances to say they should have stayed around and see what would have happened denied the economic reality of the applicants lives. They had an obligation to themselves and their families to maintain employment. It was clearly their evidence that they had no confidence in the Area Health Service being able to provide suitable employment for them. One of the applicants indicated "I didn't expect the Area Health Service to do anything for me" that that showed the failure of the Area Health Service, in breach of its own obligations, to advise the applicants of their rights under relevant industrial agreements.

188 In relation to the period of time concerning when the positions were first offered it was said to be nine days however that had less than five working days. They were advised on 21 June, there was a weekend in between, in circumstances where the respondent had known from February. To not provide a list until 21 June and to say that was acting in a timely fashion defied belief.

189 In relation to the issue of indirect discrimination, there were five employees who had specific concerns in relation to night and afternoon shift including the four applicants in these proceedings. Three of those had family responsibilities that directly impacted on their need to work shifts. It was simply not sufficient to say there was no issue of indirect discrimination when there was an outcome like that.

190 Finally it was submitted that the respondent had contended that the applicants had at all material times the options open to them of taking up employment with YOTS or if they do not want to take up employment with YOTS or were unsuccessful, of remaining in the employment of the respondent, at no stage had Mr Ginters been able to advise what would have happened if they had gone for option 3, they didn't know. It was simply not an option available to the respondent. The respondent had no power to say that the applicants must do one or the other. In circumstances where they created for the applicants a choice that was not real and did not exist at law and say this is a choice you must pursue then when the applicants make that choice there was clearly a dismissal. In requiring the applicants to choose either option a) or option b), when there was no power to require such choice, this meant there was a constructive dismissal.

Consideration
191 I have very carefully considered the evidence (which included some 43 Exhibits), the transcript and the submissions of the parties including the various authorities cited.

192 The onus is on the applicants to satisfy the Commission that firstly they were constructively dismissed and secondly that if such a dismissal took place that it was sufficiently harsh, unreasonable or unjust to warrant the intervention of the Commission. Both advocates appropriately cited the leading authority on constructive dismissal as being Allison v Bega Valley Council.

193 Extracts from the passages to be found at pages 72 and 73 were relied on. That discussion by the Full Bench is set out in full as follows:

" It is a trite observation that a contract of employment like any contract can come to an end in a number of ways. Termination can be "by" the employer where an employee is "dismissed" either with notice in accordance with the provisions of the contract or without notice in the event of serious and wilful misconduct. Both the employer and the employee may mutually agree that the contract of employment should come to an end. In other cases the employee may bring about the termination by resigning.

In some cases the circumstances in which the termination comes about makes it difficult to determine whether there was a termination "by" the employer or the employee. There are cases where courts, after analysis, have determined that although on the face of it an employee has resigned brought about the termination of the contract of employment, in reality the conduct of the employer has compelled or unduly influenced the employee to resign. The most quoted example is an assertion by an employer to an employee to effect that the employee must resign or he or she will be dismissed. This situation is commonly referred to in the text books and decided cases as a "constructive dismissal", that is in effect the employer has brought about the termination of the contract of employment.

Although the term "constructive dismissal" is quite commonly used it can deflect attention from the real inquiry. That inquiry should involve an analysis of what occurred. Did the employer behaviour in such a way as to render the employer's conduct the real and effective initiator of the termination of the contract of employment and this was so despite on the face of it that the employee appears to have given his or her resignation?

It is obvious that a consideration of these matters must be made on a case-by-case basis and that an attempt to formulate general principles in the absence of particular facts will not assist in the overall determination of this issue.

In order to undertake the necessary analysis it is necessary to look carefully at all the relevant facts. It is necessary to determine whether the actual termination was effectively initiated by the employer or by the employee, particularly where the dynamics within a factual situation may change. For example, an employer may demand a resignation with a threat of dismissal, negotiations may then ensue and the employee may obstinately be genuinely pleased with the outcome of those negotiations to the extent that any resultant resignation may be said to be given freely and without any undue influence in brought to bear by the employer.

Where an employee initiates the termination of the contract of employment it is necessary to consider whether that ostensible act of termination was given freely and without any undue pressure. If the ostensible resignation is, in effect, a response to and consistent with a desire by an employer that such resignation be forthcoming, then what has occurred may be that determination has been brought about by the employer and that in this way the employee has been dismissed."

194 That decision has since been reaffirmed in any number of decisions of this Commission as for example those referred to by both Mr Taylor and Mr Ginters. I have also previously considered applications concerning constructive dismissals in matters such as Seipel v John Fairfax Holdings Ltd (unreported) IRC 3635 of 2001 (25 July 2001), Hanslow v Nationwide News Pty Ltd t/as News Advantage Sydney, (unreported), IRC 4390 of 2002 (20 December 2002) and Ramnani v Specix Pty Ltd [2005] NSWIRComm 1211.

195 It was clearly well known from the beginning of 2004 that the YDCIU was to be transferred to an NGO. This was a matter that was beyond the control of the employer and arose as a consequence of Government policy. In any event it seems to me that it would have been abundantly obvious that the YDCIU from the start, as a special program that was funded on an annual basis and with employees engaged on temporary employment contracts was not in the same secure position and never would be, as other typical permanent public sector departments or organisations particularly in public health.

196 The applicants were on notice from late 2004 that the transfer was going ahead, albeit that it was delayed. They were also subsequently advised of the successful NGO and the actual date that the transfer would take effect. They were assured of employment until that date. They had abundant time to look at alternative employment options within the SSWAHS and the public sector generally. They had the opportunity, if it was required, to seek assistance from the employer and their Union as to how to go about this.

197 I appreciate the circumstances of their employment such as it was in a residential unit without internet facilities and not what could be considered a more normal office or health establishment environment. That raised a clear practical difficulty of access for those employees as compared with other employees within SSWAHS.

198 If there is a criticism that can be made of the SSWAHS it is that in the absence of internet facilities in the applicants' workplace, and given the nature of the workplace, I consider that there was an absolute obligation on the employer to provide a copy of the Managing Displaced Employees Policy to the employees within that Unit. Certainly the applicants had the option of asking their Union for copy of the policy, which on their evidence they did not do in any event. However that does not remove the primary obligation as being on an employer to provide to its employees copies of all relevant policies which it has determined will be applicable to those employees in the workplace. These days that is commonly done via internet or intranet facilities. That is entirely appropriate provided that employees are of course advised as to where they will be able to access the employer's policies. But in the absence of a workplace with such facilities then an employer must ensure that employees have appropriate access to relevant policy documentation.

199 I also consider that any permanent employees at the YDCIU should have been advised in writing in February 2005, that they were now considered to be displaced employees, as that was the time at which the handover date of 1 July to YOTS was formally known. Such notification could still have indicated to employees that there was a requirement to work up until 30 June before formal redeployment by SSWAHS would take place. Employees could also had been informed that they should be commencing to look for alternative placement within SSWAHS and the public sector generally.

200 However having is those criticisms I do not consider that they raise issues of procedural unfairness sufficient to warrant the Commission's intervention on that basis.

201 I say that because I am firmly of the view that even if the policy had been provided to the applicants and they had been advised formally that they were now considered displaced employees as at February 2005 they would still have sat on their hands and done absolutely nothing as they did up until they accepted the offers of employment with YOTS.

202 If the applicants had had the opportunity of carefully considering the policy they may well have realised that there were some drawbacks which needed to be taken into account particularly in relation to salary maintenance.

203 Salary maintenance under the policy only applies for 12 months from the time a person is notified that they are displaced. That would have meant that salary maintenance for the applicants would have operated for a 12 month period from February 2005 to February 2006. That would clearly have implications if they had continued as they did to occupy their positions at the YDCIU until 30 June 2005. Whilst they would have continued to work shift work and receive shift allowances and weekend penalties during this time if redeployed into a position after 30 June 2005 that did not provide for such shift work those penalties would have ceased. They would also have effectively only being entitled to salary maintenance of their classification rate for a further 7 months until February 2006.

204 If they had found another position before 30 June and been placed in that position and it was one that did not involve shift work then under salary maintenance they would not have continued to receive those penalty payments.

205 The point I seek to make is this, that whilst the applicants complain that they were not provided with a copy of the policy and were not advised until 24 June that they were considered to be displaced as from 1 July, this in fact worked entirely to the advantage of the applicants. I do not suggest that this was necessarily a planned and intended consequence of SSWAHS actions. It is clearly a hypothetical situation but a number of hypothetical situations were raised on behalf of the applicants during proceedings.

206 It is abundantly clear from the evidence and also my own knowledge of the public health system and the public sector generally that the type of residential youth work (with shift work) that the applicants were engaged in (and given their lack of formal qualifications), was of extremely limited availability elsewhere within SSWAHS (if at all). Other areas that may have been an option are obviously the Department of Disability Ageing and Home Care and the Department of Community Services.

207 I appreciate that the applicants all worked shift work and that three of the four applicants had family responsibilities that made it difficult to work day work. However the obligations of SSWAHS to find alternate positions did not extend to creating or providing shift work where such work was not required.

208 Having carefully considered the evidence I am satisfied that SSWAHS genuinely endeavoured to find appropriate alternative positions for the applicants and followed a fair procedure throughout.

209 The situation was perhaps complicated by the issue of the permanency or otherwise of the applicants. There seems no doubt, on my reading of all the documentation, that until the intervention of the HSU and the realisation of the administrative error by SSWAHS, that the employees were temporary and were intended to remain as such. This may have impacted on the pace at which events took place subsequently and the priority given to certain actions. However, be that as it may, there is no doubt that actions taken by SSWAHS in the early 2005 and after May 2005 were consistent with their obligations to permanent employees and the applicants were treated as such.

210 The applicants seem to suggest they should have been offered voluntary redundancy. However if the applicants had considered the policy they would have found the following under 5.1 General:

"Voluntary redundancies are offered to individuals as a result of their position no longer being required by the employer, and there not being any likelihood of redeployment to another position within the public help system." (emphasis added).

211 The issue of voluntary redundancy simply did not arise because the process of redeployment had not only not been exhausted it had not even been participated in by the applicants. Mr Ginters makes a very cogent point on behalf of the respondent that the applicants did not "stick around" to see what would happen they elected to take up the jobs offered with YOTS.

212 I also have no doubt that in 2004 the applicants and indeed all employees in the YDCIU would have expressed a strong preference that they stay with the Unit when it transferred because they were familiar with the work, enjoyed that work and were committed to their jobs and the clients.

213 It is obvious from the documentation that transfer to the NGO but with continued employment with SSWAHS was initially sought but was not achievable.

214 SSWAHS did the next best thing and that was to facilitate the employment of its employees with the NGO. I am satisfied that the steps taken such as the resumé writing and the meet and greet exercise and the priority interviews, which was clearly as a result of negotiations between SSWAHS and YOTS, were a distinct advantage to the applicants and facilitated them obtaining the positions with YOTS.

215 Whilst argument could be made as to whether or not simply having an interview first in time gave one a priority nevertheless the opportunity, following the meet and greet day, to be interviewed first, as persons currently occupying the positions and before external applicants (and I am not prepared to accept the hearsay evidence of the applicants that this did not occur) would have in fact place them in a more favourable position for selection.

216 I accept that ultimately the jobs were offered based on merit, as per the equal opportunity policy of YOTS (a fairly common feature with employers), and the applicants were successful on merit. That doesn't detract from the fact that SSWAHS assisted in facilitating that process.

217 Mr Taylor relied on the United Workers Case which Mr Ginters appropriately advised the Commission was under appeal. That appeal has now been determined by the Full Bench in United FM Group Services Pty Limited t/as United KFPW v National Union of Workers, New South Wales Branch [2006] NSWIRComm 391.

218 That case involved a contract changeover in the private employment sector. The relevant award covering the employees contained severance pay provisions which provided that, subject to an application by the employer and further order of the Industrial Relations Commission, an employer could pay a lesser amount or not amount of severance pay if the employer "obtains acceptable alternative employment for an employee".

219 That case can be distinguished, both at first instance as Mr Ginters rightly points out, and still relevantly in considering the appeal decision, that in relation to the circumstances concerning these applicants, SSWAHS had an obligation under its policy to redeploy the applicants rather terminate their services.

220 Redundancy payments were ordered at first instance and confirmed by the Full Bench however in doing so the Full Bench determined that McKenna C. had erred in not considering the question of the appellant's role in achieving a situation in which the employment offered to the affected employees by SSDS was acceptable employment when considered objectively. The Full Bench then went on to consider that question on the material before it.

221 Again the consideration and findings of the Full Bench can be distinguished from this matter in that whilst there analogies that can be drawn to their consideration of whether the employer had a real role in facilitating the employment of the employees with the new contractor (who had an obvious and readily available source of labour), the fundamental difference between the two employment situation remains that there was no redeployment offered as it was to the applicants in these matters nor was such a redeployment provision available or applicable to the employees of employer who lost the contract. That decision does not therefore assist the applicants case.

222 I am satisfied that based on the evidence that the requirement to submit a resignation where the applicants had elected to take up the job offer with YOTS was an administrative function which ensured primarily that they could be paid their entitlements on the termination of the employment relationship (to use a neutral term for the moment).

223 It is apparent that there were some perceived and probably typical administrative imperatives to finalise matters by 30 June because of the funding situation, the cessation of operations of the YDCIU by SSWAHS coupled with the end of the financial year.

224 I consider that the applicants have misunderstood this process and inferred intentions and motives on the part of their employer, and in particular Ms Goodwin, that were clearly not intended and simply did not exist. The other 7 employees who remained with the Area Health Service do not appear to have considered that they had to resign because the Area Health Service was not going to do anything for them and on that basis their only option was to take up the job with YOTS. Those 7 employees also presumably had the option of applying for positions with YOTS and taking up those positions. There is no evidence as to what they did in this regard. However the option was there and was clearly not taken up.

225 To use that unfortunately well-worn and somewhat hackneyed phrase, at the end of the day, the applicants looked at the alternative positions that were offered to them and made their own decision that they were not suitable because they would not have been working shift work. They were also concerned that they might have been given clerical and other duties to do post 30 June. That may well have been the case in the absence of any other suitable position initially been available.

226 Again Mr Ginters' cogent submission that the applicants didn't stick around to find out what would happen, is very relevant. Whilst they might have initially had to carry out clerical duties on day work there is no way of knowing whether or not a suitable position would have become available in the future because the applicants simply chose not to make use of that opportunity.

227 I also consider that clearly the applicants had a preference for continuing to perform youth work which were able to do with YOTS. Indeed Mr Noone's belief that the applicants had greater career opportunities with YOTS is one that I share. There were always going to be clear limitations on what was available to the applicants within SSWAHS. YOTS has had some media attention in recent years and is clearly an NGO committed to improving the lives of young people in our society.

228 I have considered the Government Cleaning Service Award Cases and agree that they do not assist the applicants but in fact lend considerable weight to the respondent's submissions that even if there it was held that there were dismissals they were not harsh unreasonable or unjust in the circumstances.

229 The applicants appear to consider that they had some entitlement or right or that it was appropriate to take positions with YOTS and continue in employment with SSWAHS. I do not agree with that position.

230 There has been much said about "windfall gains" and the obligations of the SSWAHS. In my view their obligation was to find alternative positions for the applicants and if there were no alternative positions available to continue their employment in accordance with the Managing Displaced Persons Policy. That obligation would have been discharged if their employment had been continued on the same hours and at the same classification rate. That was the intention of SSWAHS.

231 All the applicants secured employment with YOTS on at least the same basis

as had been provided by SSWAHS. Indeed Ms Biviano moved from part time to full-time employment of 38 hours. Given that 2 other applicants also worked a full-time 38 hour position with YOTS and that all 4 worked shift work I cannot possibly imagine how they thought they could continue, on a practical basis to work for YOTS, yet continue employment with SSWAHS when it was clear there were no shift work positions available.

232 It was also apparent on my questioning of one of the applicants that she really had no idea what it was she wanted the Area Health Service to do. It is clear that none of the applicants fully appreciated the position they were in, the position that SSWAHS was in and the efforts that their employer made on their behalf.

233 I also must say that I find it truly amazing, as Mr Ginters points out, that more than 12 months down the track having rejected redeployment by SSWAHS and having taken up positions with YOTS and being paid for all that time (on a shift work basis), but they now seek to be redeployed by SSWAHS and paid back pay! I am at a loss as to figure out just what economic loss they have sustained, apart, perhaps from an entitlement to accrue long service leave. However that entitlement would have continued had they taken up the option of staying with SSWAHS and being redeployed.

234 Having carefully considered the evidence and the submissions in this matter and applying the relevant case law in relation to constructive dismissal I am unable to find that the dismissal of the applicants was at the initiation of the employer. The applicants freely chose to reject the redeployment option available to them, albeit for valid reasons nevertheless that was their choice, they were not forced into it in my view, it suited them perfectly well to resign their employment with SSWAHS and continue essentially the same position with YOTS.

235 There was no constructive dismissal of the applicants.

236 Even if, on a terribly simplistic basis, it could be held that there were such a constructive dismissal of the applicants, merely because SSWAHS required resignations to be submitted by 30 June and because the applicants had taken up positions with YOTS, applying the various principles arising from the cases that must be considered in determining whether or not a dismissal is harsh or unreasonable or unjust (the leading cases having been referred to by Mr Taylor) based on the evidence, I would be unable to find that such dismissals were either harsh or unjust or unreasonable on either a substantive or procedural basis. Applying the Government Cleaning Service Award Cases such a finding would also not be possible.

237 Having found that no dismissal of the applicants took place the applications are therefore dismissed and these matters terminated.

Elizabeth Bishop

Commissioner

LAST UPDATED: 14/12/2006