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T9163 - 3 September

TASMANIAN INDUSTRIAL COMMISSION

Decision Appealed - See T9833

Industrial Relations Act 1984
s.29 application for hearing of an industrial dispute

George Watson Carnie
(T9163 of 2000)

and

Blue Ribbon Meat Products Pty Ltd

 

COMMISSIONER P C SHELLEY HOBART, 3 September 2001

Industrial dispute - termination of employment - whether termination at the initiative of the employer - whether redundancy - whether constructive dismissal - credit of witnesses - whether alternative to resignation available - found termination at the initiative of the employer - order issued

REASONS FOR DECISION

Arrangement

These Reasons for Decision contain the following parts:

Subject

Page Number

   
Arrangement

1

The Application

3

Background

4

Contentions

8

The Applicant

8

The Respondent

9

The Evidence

9

List of Witnesses

9

The Events of 1998 and 1999 - the "Carnie documents - Mr Joy's resignation from the Board of Blue Ribbon - the takeover by the new Board - alleged motive for alleged dismissal.

Mr Carnie's evidence

10

Mr Joy's evidence

11

Mr Flynn's evidence

14

Mr Blight's evidence

14

The Events of 1999 and 2000 - Mr Carnie's functions and duties before and after Mr Joy commenced as Chief Executive Officer - alleged redundancy - alleged constructive dismissal - alleged offer of position of General Manager Sales and Distribution.

Mr Carnie's evidence

15

Mr Joy's Evidence

22

Ms Tindall's Evidence

27

Mr Kavanagh's Evidence

27

Mr Summers' Evidence

28

Mr Erichsen's Evidence

29

Mr Kimpton's Evidence

30

Mr Young's evidence

30

The Events of August 2000 - Mr Carnie's Resignation and Associated Matters.

Mr Carnie's Evidence

31

Mr Joy's Evidence

35

Mr Flynn's Evidence

37

The Events at Blue Ribbon after 15 August 2000 - the Restructuring after Mr Carnie's Departure

Mr Kavanagh's Evidence

39

Mrs Broomby's Evidence

40

Physical Facilities

41

Mr Carnie's Evidence

41

Ms Tindall's Evidence

42

Mr Flynn's Evidence

43

Mr Phillips' Evidence

43

Mr Joy's Evidence

44

Alleged "Pattern of a Purge"

45

Mr Joy's Background

46

Mr Carnie's Insurance Claims

49

Submissions

52

The Applicant's Submissions

52

The Respondent's Submissions

56

Findings

64

The Questions to be Decided

65

The Credit of Witnesses

65

Was the Termination at the Initiative of the Employer?

68

Remedy

78

Orders

79

The Application

[1] On 28 August 2000, George Watson Carnie (the applicant), applied to the Acting President, pursuant to s.29(1A) of the Industrial Relations Act 1984 (the Act), for a hearing before a Commissioner in respect of an industrial dispute with Blue Ribbon Meat Products Pty Ltd (the respondent) arising out of the alleged unfair termination of his employment and severance pay in respect of termination of employment as a result of redundancy.

[2] On 30 August 2000, the Acting President convened a hearing at the Supreme Court, Cameron Street, Launceston, Tasmania before myself, to commence on Monday, 18 September 2000 at 11.00 am. Mr Robert Phillips, a legal practitioner, sought and was granted leave to appear on behalf of the applicant, and Mr Andrew Cameron, of the Tasmanian Chamber of Commerce and Industry appeared on behalf of the respondent employer. The hearing was adjourned to Monday 18 September 2000, and again until Monday 20 October 2000 in Hobart. There was an inspection of the administration complex at the Killafaddy site in Launceston on 5 December 2000. There were a further eight hearing days in Launceston and two in Hobart, with the final hearing day being 10 May 2001.

[3] The application was made, and the hearing commenced, prior to the introduction of the Industrial Relations Amendment Act 2000 (No. 104 of 2000.) There was no submission put to me that the amended Act should apply. When considering remedy, I have done so under the provisions of the Act at the time the application was made.

[4] The applicant claimed that he had been constructively dismissed and that his position had become or was about to become redundant.

Background

[5] The background to the dispute is as follows:

[6] Mr George Watson Carnie was employed by Blue Ribbon Meat Products Pty Ltd from April 1983 until 15 August 2000 in a clerical capacity and progressed up through the ranks. In 1993 he was appointed to the position of General Manager Strategic Planning and Development. In 1996 he became General Manager Commercial. At the time of the termination of his employment his salary was $100,997 per annum plus vehicle and allowances.

[7] There was no dispute that Mr Carnie was a dedicated, competent and hard-working employee, with a great deal of corporate knowledge, who worked long hours at the office and who also performed some work from his home.

[8] Mr Carnie was involved in a motor cycle accident in 1983, which resulted in him becoming quadriplegic and being confined to a wheelchair for a period of time. Following rehabilitation he was able to walk again.

[9] In 1993, as a result of a surgical procedure gone wrong Mr Carnie became paraplegic. He now has special needs requiring particular facilities, including wheelchair access to buildings and toilets, covered parking to enable transfer from motor vehicle to wheelchair in dry conditions and special controls for his motor vehicle. Mr Carnie does not have bladder and bowel control and is required to take special precautions in relation to personal hygiene in order to prevent medical complications, for example, urinary tract infections. He therefore needs to be in very close proximity to toilet facilities.

[10] Blue Ribbon Meat Products Pty Ltd (hereafter called Blue Ribbon) provided appropriate facilities, including a covered parking area, a wheelchair lift, toilet facilities and hand controls for a motor vehicle. This was initially done with the assistance of the Commonwealth Rehabilitation Service.

[11] Since 1993 Mr Carnie has been essentially office-bound, with only very occasional work-related journeys to places other than the offices located at "Killafaddy" in Launceston. Killafaddy is the site of a large abattoir owned and operated by Blue Ribbon.

[12] At Killafaddy the administration offices are situated in a series of "houses", known as House 1, House 6, House 7 etc. Mr Carnie, in 1993, was located in House 1, which was the house modified with the assistance of the Commonwealth Rehabilitation Service.

[13] Blue Ribbon was established in 1957 and was owned by Mr Joe Chromy. In 1985 the red meat division of Blue Ribbon was sold to Richardsons Meat Industries Pty Ltd, which went into receivership approximately twelve months later, following which Mr Chromy regained control, and it remained a private company until 1993 when it was floated as a public company. In 1996 Mr Tony Munns was the Chief Executive Officer and, the evidence was, at that time Mr Carnie was generally perceived as being second in charge after Mr Munns.

[14] Mr Ray Joy became a shareholder of Blue Ribbon and on 6 June 1996 had a discussion with Mr Chromy regarding his becoming a Director. On 9 October 1996 Mr Joy conducted a "due diligence" examination of the affairs of Blue Ribbon and on 11 October 1996 he was invited to become a Director of the company. He became a non-executive Director and also acted as a consultant to the company, for which he received remuneration.

[15] The situation as at 1997 was that Mr Joy was a non-executive Director, whilst maintaining other business interests, including in his own company, Asia Pacific Fine Foods, later renamed Natural Prime Foods Pty Ltd.

[16] On 20 April 1998 there were discussions between Mr Joy and Mr Carnie regarding some business transactions involving Natural Prime Pty Ltd. Mr Carnie expressed concerns regarding a possible conflict of interest between Mr Joy's activities and Blue Ribbon's interests. The following day, 21 April 1998, Mr Carnie sent a facsimile transmission to Mr Joy asking for details of the proposals.

[17] Upon receipt of the fax Mr Joy telephoned Mr Carnie and a conversation took place, following which Mr Carnie went to Mr Munns and informed him of the what had been said. During the hearing Mr Carnie and Mr Joy gave different versions as to the exact nature of that conversation.

[18] The next day, 22 April, 1998 Mr Chromy sent a letter to Mr Joy.1 This letter formed part of what I shall hereafter refer to as "the Carnie documents''. In it he said that, from information provided by Mr George Carnie, it appeared that Mr Joy had acted, or intended to act, not in the best interests of the company, and that, due to the serious nature of the incident, he felt obliged to seek advice, which had been that he should seek Mr Joy's resignation.

[19] On 24 April 1998 Mr Joy responded by letter to Mr Chromy, and said, inter alia:

"...I absolutely refute Mr Carnie's allegations and categorically deny that any threat was made by myself against the interests of the company..."2

[20] Legal advisers to Blue Ribbon, Minter Ellison, sent a letter, dated 29 April 1998, to the Chair of the Blue Ribbon Board, advising that, in their view, Mr Joy may have breached corporate law and may have misused his position as a director of the company:

"As discussed there seems to be two (2) obvious remedies, first, that he [Mr Joy] resign or, secondly he acknowledge the error of his actions and ensures such difficulties will not again occur."3

[21] In an undated letter to Mr Chromy in his capacity as Chair of the Board, Mr Joy resigned, citing external business demands as the reason, with his resignation date effective from 1 May 1998.

[22] On that same date Mr Chromy wrote to Mr Joy, in the following terms:

"...

Given the nature of the allegations contained in my facsimile dated 22 April 1998 and your subsequent response the Board has taken legal advice.

In respect of the allegations referred to in my facsimile dated 22 April 1998 the Board has investigated the matter and is of the view that the allegations are not sustainable and consequently are satisfied that you have not breached your obligations as a Director of the Company.

...

Yours faithfully
Joe Chromy"4

[23] During the hearing Mr Joy denied that the letter to him from Mr Chromy of 1 May 1998 was a condition of his agreeing to resign.

[24] Following Mr Joy's resignation from the Board he progressively sold his shares in Blue Ribbon.

[25] At the end of 1998 Mr Joy decided to again acquire shares in Blue Ribbon, which idea he discussed with a group of people, including Mr Graham Blight. In 1999 Agribusiness Pty Ltd was formed, of which Mr Joy was a shareholder and director.

[26] Agribusiness purchased Mr Chromy's shares in Blue Ribbon. There was a meeting between the Board of Blue Ribbon and Agribusiness. The members of the Board told Agribusiness that in no circumstances should Mr Joy hold a position as Director of Blue Ribbon, and that he had possibly breached corporations law.

[27] In June 1999 there was a hostile takeover of Blue Ribbon by Agribusiness and the old Board resigned. Mr Chromy left the Board and Mr Munns, the Chief Executive Officer resigned.

[28] From 10 September 1999 Mr Joy was back at Blue Ribbon, this time as Chief Executive Officer (CEO). The evidence was that Agribusiness had always intended that Mr Joy be CEO.

[29] Mr Carnie was perceived by some, including Mr Chromy, to be "vulnerable" under the new regime and Mr Chromy and Mr Munns gave him the set of documents referred to above as the "Carnie documents".

[30] Mr Joy had a meeting with the senior management employees at Blue Ribbon, during which he referred to "scar tissue" existing. The evidence differs as to whether or not Mr Joy directed that comment to Mr Carnie.

[31] The new Board made clear its intention to restructure the activities of Blue Ribbon, to move toward three distinct operational units, with each of those units managed by an Operations Manager. Previously most of the activities had been managed by a Senior Management Group, which included Mr Carnie.

[32] Following Mr Joy's appointment as CEO a number of changes were made in relation to Mr Carnie's functions and responsibilities. The range and nature of those changes are one of the issues in dispute.

[33] Mr Carnie was relocated to House 7, which had been modified to include disabled toilet facilities and an awning over the area where Mr Carnie parked his car. These facilities were not to the standard that had existed in House 1.

[34] It is alleged that in June 2000 Mr Joy offered Mr Carnie the position of General Manager Sales and Distribution, to be announced on 1 September 2000, with a start date of 1 October 2000. The details of the position were never established. The position would involve relocating to House 6, which does not have facilities for a person with disabilities such as Mr Carnie's, for example, the ramps are inadequate and there are no disabled toilet facilities, although it was claimed that modifications would have been made, when and if necessary.

[35] Mr Carnie alleges that on three occasions he was told by Mr Joy that his position of General Manager Commercial would cease to exist. He also alleges that his [shared] secretary was told that her position would become redundant and that Mr Carnie had been offered another position, but was expected to resign. These allegations are denied by Mr Joy.

[36] Mr Carnie did not consider that he had the "skill sets" necessary for the position of General Manager Sales and Distribution and believed that he would be unable to perform such duties because of his inability to travel regularly, which he perceived to be a necessary part of such a role. He resigned on 1 August 2000, after having completed preparation of the annual budget, giving two weeks' notice. Mr Joy was surprised at the short period of notice, having assumed that Mr Carnie's contract would have required either three months' or six months' notice, as was the case with other senior executives. It was not so in Mr Carnie's case. There are a number of issues in dispute as to the circumstances of the resignation. At issue, also, is whether, had Mr Carnie rejected the position of General Manager Sales and Distribution, he would have been able to remain in his position of General Manager Commercial.

[37] During the notice period negotiations were conducted between Mr Carnie and Mr Mike Flynn, Human Resources Consultant to Blue Ribbon, in relation to the possibility of Mr Carnie continuing to provide services to Blue Ribbon on a consultancy basis. The negotiations were unsuccessful, a significant reason being the refusal of Blue Ribbon to pay to Mr Carnie a sum of money in recognition of his seventeen years' service, by way of a redundancy payment, such as had been paid to other senior executives who had departed the company. The refusal was based on the fact that Mr Carnie had resigned.

[38] At the time of the conclusion of the hearing no-one had been appointed to the position of General Manager Sales and Distribution, nor had the position been advertised.

Contentions

The Applicant

[39] Mr Carnie contends that:

  • his position of General Manager Commercial had been "stripped away" from him, or was in the process of being stripped from him, his authority had been diminished and he was left, or would be left, with a "shell" of his former position

  • the new position of General Manager Sales and distribution offered to him by Mr Joy was an empty, hollow position which, in any case, he would be unable to fulfil because of the lack of appropriate skills and his physical disabilities

  • the new position would require relocation to House 6, with no guarantee of the disabled facilities necessary to enable him to work

  • there had been a "purge" of the members of the senior management team who were there at the time of the takeover of the Board, and his forced resignation was part of that pattern

  • his resignation was fully intended by Mr Joy but that he (Mr Joy) wanted him to complete the budget preparation and also intended to use the (assumed) lengthy notice period to put in place a full transfer of his duties and responsibilities

  • the motive for Mr Joy wanting his resignation was the fact that he had exposed Mr Joy's activities, which resulted in Mr Joy having to resign from the Blue Ribbon Board in 1998

  • he had no choice but to resign and he was either made redundant or constructively dismissed

The Respondent

[40] The employer contends that:

  • Mr Carnie was a vital part of the organisation and that was recognised by the new Board

  • Mr Joy bears no ill will toward Mr Carnie

  • the position of General Manager Commercial still exists and another person, Lynette Broomby, has been employed to fill that position

  • had Mr Carnie declined the offer of the position of General Manager Sales and Distribution he would have been able to remain in the position of General Manager Commercial

  • Mr Carnie has the skills to perform the role of General Manager Sales and Distribution

  • the real reason for Mr Carnie's resignation was his paraplegia and a desire to work from home

  • the constructive dismissal claim was a plot by Mr Carnie, who deliberately set about putting in place circumstances that would support a subsequent claim for a substantial amount of money

  • there has been no termination at the initiative of the employer

THE EVIDENCE

Witnesses

[41] Witnesses for the applicant were:

George Watson Carnie, the applicant
Kerry Joy Tindall, Mr Carnie's fiancee and ex-employee of Blue Ribbon
Ian Raymond Kavanagh, ex-senior executive, Blue Ribbon

[42] Witnesses for the respondent were:

Michael Dennis Flynn, Human Resources Consultant to Blue Ribbon
Graham John Blight, Chair, Blue Ribbon Board
Lynette Alice Broomby, General Manager Commercial Red Meat
John Desmond Phillips, Maintenance Supervisor, Red Meat Section
Christopher Norman Summers, Business Manager, Smallgoods
Jack William Erichsen, Operations Manager, Smithton plant
Gregory David Kimpton, Export Sales Manager
Russell Frederick Young, State Sales Manager
Raymond Gavin Joy, Chief Executive Officer

[43] In terms of the evidence concerning the events surrounding the termination of Mr Carnies's employment, I have set out the evidence chronologically, which is not the way it was presented during the hearing. There were a number of related issues, the evidence regarding those I have set out under a heading "Other Issues".

The events of 1998 and 1999 - the "Carnie documents"; Mr Joy's resignation from the Board of Blue Ribbon; the takeover by the new Board; alleged motive for alleged dismissal.

The evidence of Mr George Watson Carnie - the applicant

[44] Mr Carnie testified that, following discussions with Mr Joy about warehousing and distribution of value-added products for Mr Joy's company, Natural Prime, he sent Mr Joy a fax on 21 April 1998 asking him to detail the items that Mr Joy wanted to distribute. Mr Carnie said that he was concerned because it was the policy of Blue Ribbon to move towards value added products, and he thought that there may be a conflict of interest between Blue Ribbon's interests and Mr Joy's business dealings.

[45] Following the receipt of the fax there was a telephone conversation between Mr Carnie and Mr Joy. He said:

"...when I mentioned that I would have to refer the matter to my colleagues, Mr Joy...became very annoyed, very agitated and he said, take this as a threat not a promise; if you don't provide me with distribution access as I know you provide to others, then I will come down on Blue Ribbon like a ton of bricks...I could take my investment in Blue Ribbon and set up elsewhere in Tasmania, and take your customers that way. That was an extraordinary comment...I said, could you just repeat what you said and he did. He repeated the words again".5

[46] Mr Carnie said that he immediately went and reported Mr Joy's comments to the Chief Executive Officer, Mr Munns, who then contacted Mr Chromy, the Chairman.

[47] In the discussions which followed Mr Carnie took an active part, he said. He was involved in discussions with Mr Brand [a member of the Board] and in telephone hook-ups with Minter Ellison. He was asked to provide information from his files as part of the documentation.

[48] In 1999, following the takeover of the company by the new Board there was a meeting between the executive management group and Mr Joy, during which, according to Mr Carnie, Mr Joy said:

"...There are a number of people in the room that don't know me or wouldn't know me other than a name and he said there are others that do know me, and he said, George knows me and there is some scar tissue - we've had some dealings before and there's some scar tissue that remains from that... And time would see how that healed."6

[49] During cross examination Mr Carnie reiterated his statement that Mr Joy had named him in relation to the scar tissue:

"...He was very specific who the scar tissue was with; it was with me...He mentioned my name".7

[50] Mr Carnie denied that Mr Joy had said that was in the past and that they would be moving on from that.

The evidence of Mr Raymond Gavin Joy - Chief Executive Officer - Blue Ribbon

[51] Mr Joy testified that in mid-April 1998, whilst he was still a Director of Blue Ribbon, he had a fairly long discussion with Mr Carnie, beginning with a facsimile in which Mr Carnie had asked for an explanation in terms of product. When asked how that conversation had ended up, Mr Joy said:

"I don't know how it ended up. The decision was that he felt that as the company had already made a commitment to go down a value-adding chain and enter some of those markets I was describing, he saw it as conflict in that any decision of whether they provided services - storage services - to Natural Prime would be a matter for the SMG [senior management group]...

...I said, if I'm not being treated the same as anyone else, then

I'll come down like a ton of hot bricks..."8

[52] Within days Mr Joy received a telephone call from Mr Chromy, followed by a fax making certain allegations, saying that legal advice had been received, and asking for Mr Joy's resignation.

According to Mr Joy, the matter was resolved:

"...by the company acknowledging there was not a breach and I resigned from the board of directors simply because at that time the relationship had totally fractured..."9

[53] Around Christmas 1998 Mr Joy discussed the opportunity of buying Mr Chromy's Blue Ribbon shares with a group, including Mr Blight, the current Chair of the Board. That led, he said, to discussions with a number of private investors, culminating in four people acquiring shares in Blue Ribbon: himself, Mr Blight, Warren Davis and George Bennett. There was a meeting with the then Board of Blue Ribbon, at which it was disclosed that Mr Joy was involved.

[54] Mr Joy described a hostile takeover and opposition to his becoming a director

[55] Mr Joy said that he advised the board of Agribusiness that, as he was an impediment to a smooth transition, he would stand aside until such time as the new board could form its own judgment as to whether he was a fit and proper person. He said that it was "absolutely" always his intention to be CEO.

[56] The new Board took over on 10 September 1999.

[57] There was a meeting with the staff senior management group, he said, at which the way forward was outlined, which included decentralisation and having to work as a team. In that discussion:

"...there was reference to scar tissue which we all bore. I'm aware from reading the testimony so far that the view that scar tissue only remained on one person is probably a falsehood because all the managers were concerned, as I understood, on the change and were unsettled by the change.

...I would imagine that George would have felt particularly concerned given his role in what I still maintain is an unfortunate event."10

[58] In relation to the discussion on 21 April 1998 regarding warehousing of Natural Prime Product, Mr Joy said that Mr Carnie had distorted what was said in that conversation.

[59] Mr Joy agreed that he had been asked to resign from the Board of Blue Ribbon. He agreed that he knew George Carnie was the source of the allegation that he had threatened the company. He was asked if he resented, at the time, what Mr Carnie had said about him:

"I resent being put in that position, yes.

You resented it them...........Yes.

You resent it now?.............It's history, its gone".11

[60] However, later in cross-examination, Mr Joy, when being asked whether it was an insult to be asked to withdraw as a director of a company, said:

"It is and still is.

...It must have been a matter of concern that your reputation is being called into question?...........It is and still would be."12

[61] In 1999 Mr Joy put himself forward as a director following the Agribusiness acquisition of shares. When asked what was used to prevent him becoming a director, he said that tabled documents were read to Mr Bennett and Mr Blight and that those documents alleged improprieties. Mr Joy agreed that it was the existence of the "Carnie documents" that thwarted his attempt to return as a director of the company in 1999:

"It was, I guess, to that extent, but it was a voluntary step down.

And it was the existence of that file that effectively led to your leaving in 1998?............No...At that stage I had a letter from the company saying that they couldn't substantiate the allegation.

As a condition of your resignation...........I would not have resigned with a cloud hanging over it that is certainly the case. It had to be dealt with and was dealt with."13

[62] During re-examination Mr Joy read out what, he said, were contemporaneous notes made shortly after the discussion that he had with Mr Carnie. He said that the date of the notes was 25 April 1998. The notes were in relation to the conversations and meetings in April 1998. The notes were a very lengthy, detailed, and sequential account of the issues and events which were the subject of the "Carnie documents', beginning on Saturday April 18 1998 with a discussion with Mr Munns. He said "these footnotes take the form of a letter that was going to be sent to Mr Chromy"14, and which had been typed by his wife and which was never sent.

The evidence of Mr Michael Dennis Flynn - Human Resources Consultant to Blue Ribbon

[63] Mr Flynn gave evidence that, following the takeover of the Board by Agribusiness, there was a meeting on a Sunday attended by a number of senior managers and Mr Chromy. The subject of the discussion was the takeover by the new Board.

[64] Mr Flynn said that, at that meeting, he asked if there was to be any protection for the senior managers, specifically, Mr Carnie:

"given his involvement in some events that have been related to this commission regarding Mr Joy's resignation in 1998."15

[65] During cross-examination Mr Flynn agreed that Mr Carnie was a person who was particularly vulnerable, given that Mr Joy was coming back to Blue Ribbon as CEO.

[66] Mr Flynn said that there was a meeting following the takeover by the new Board between Mr Joy and senior managers, during which Mr Joy made reference to "scar tissue":

"This is not verbatim but it is the best that I can recollect it. Mr Joy...made reference that, some of you know me, some of you don't, there is some scar tissue, I believe at that stage he looked at Mr Carnie...

Did he mention Mr Carnie by name?............I don't recall that but I remember - I assumed it was George Carnie and I also believe that there was some acknowledgment."16

The evidence of Mr Graeme John Blight - Chair of Board of Blue Ribbon

[67] Mr Blight testified that he was currently the Chair of Blue Ribbon and that he had held a number of prominent positions in the agricultural area.

He said that he had become a Director and Chair of the Board of Blue Ribbon on 10 September 1999.

[68] Mr Blight said that there was a meeting at the Northern Club in Launceston which involved senior managers and that he had outlined the direction the company would be headed toward; instead of just being a straight abattoiring business they wanted to move toward being a food and branded business and that that would involve some changes.

[69] He had not directly addressed issues to do with the business because his belief was that changing management processes was not a direct responsibility of the Board, it was a management process and that was controlled by the CEO.

[70] Mr Blight agreed that he delegated the day-to-day administration of running the company to the chief executive officer.

[71] During cross-examination of Mr Blight, Mr Phillips asked the following questions and received the following responses:

"There was a board meeting...between - what I'll conveniently refer to as, the old board and the new board, Tony Munns, Joe Chromy, Robert Brand, yourself and others prior to you becoming a director?.............Yes.

At that board meeting is it not correct that the old board indicated to you that in no circumstances should Mr Joy have any position with Blue Ribbon?.............Yes, they

expressed that view.

...

...at that meeting you were told that the old board had concerns that Mr Joy may possibly have breached the corporation's law?............ They did suggest that."17

The events of 1999 and 2000 - Mr Carnie's functions and duties before and after Mr Joy commenced as CEO; alleged redundancy; alleged constructive dismissal; alleged offer of position of General Manager Sales and Distribution.

The evidence of Mr Carnie

Meetings, Discussions, Consultation etc

[72] Mr Carnie's evidence was that, after Mr Joy became CEO, there were changes in his attendance at meetings. He wasn't invited to, for example, the Tasmanian Farmers and Graziers meetings. He said that when Mr Munns had been there he would have attended those in conjunction with Mr Munns, or, failing that, Mr Munns would report the outcome of such meetings to him. It was important to his role as General Manager Commercial to know what was happening.

[73] Mr Carnie said that after Mr Joy returned he had not been party to the selection process or any of the meetings that involved the establishment of the Livestock Advisory Board, which was created in or around September/October 1999.

[74] He had not been involved in discussions about the strategic directions for livestock, he said. He was concerned that he wasn't privy to such knowledge, given that livestock was such an integral part of the success of the red meat operations of the business.

[75] Mr Carnie said that in October 1999 Mr Craig Milner was the group livestock manager and reported to him. There was an agistment operation at a property called "Barnbougle". The agistment was of cattle owned by the Dickinsons. Mr Milner managed the on-farm operations. Mr Dickinson had consulted with him on issues to do with cattle. Mr Carnie said that Mr Joy had told him that he was going to appoint a new manager to administer the "Barnbougle" property because it was being mismanaged. Mr Carnie had disagreed with that and said so. He was not consulted as to the proposed new appointment, nor as to strategies to deal with Mr Dickinson. Given his level of experience within the company, he would definitely have expected to have been consulted before such an announcement was made to Mr Dickinson, he said.

[76] When cross-examined, Mr Carnie said that [after Mr Joy became CEO] he still had an involvement in strategic planning as a member of the scaled down senior management group, his input being principally because of his corporate knowledge. He said that the senior management group had been dismantled by Mr Joy. This was part of the restructuring plan.

[77] Mr Carnie said that he still attended the weekly red meat management meetings until the time of the termination of his employment. He prepared the profit and loss commentary for those meetings. Up until the time of his leaving he was still in charge of livestock procurement.

Livestock Procurement

[78] Plant Managers [retitled Operations Managers] were told by Mr Joy that they were to take a direct role in livestock management. Mr Carnie testified that he did not object to that involvement, provided that he maintained the autonomy and control of the livestock. However, subsequently, the Operations Manager for Killafaddy told him that he was to take control of everything to do with the livestock for Killafaddy. Mr Carnie said that he saw this as diminishing his role.

[79] Mr Joy announced that the company had appointed a pig promotion officer, which announcement was made at a red meat management meeting, without previous discussion or reference to Mr Carnie. This happened in the latter half of July 2000, he said. This had caused him embarrassment and had undermined his role.

[80] When cross-examined, Mr Carnie said that as far back as 1999 there had been discussions about a restructure of the business and that the favoured mode was to operate through independent, decentralised, business units. However, he said, it had not been indicated to him that would mean a cessation of his role.

Red Meat Administration

[81] Discussions regarding organisational restructure took place in approximately March 2000, and it was confirmed that Mr Carnie would have the responsibilities for red meat administration, he said.

[82] Mr Carnie said that In July of 2000 Mr Ian Kavanagh told him that:

"...I've just been told to organise an administration team to take the red meat administration staff and relocate them to house 8 and he said what do you know about that? I said, I know nothing about it. I said, I've been talking to the staff, we've been through the restructure process. I said, obviously, it's just another one, Ian. He said, that's livestock, that's administration, what are you going to do?"18

[83] The conversation with Mr Kavanagh was the first that Mr Carnie had heard of the transfer of functions. The physical relocation of people from House 7 to House 8 meant that they would no longer be physically accessible to him, he said.

[84] When cross examined, Mr Carnie said that while his time spent each day on red meat administration remained relatively unchanged, what was announced was that the administration was going to be transferred, which would mean that personnel who reported to him would no longer do so, and the reporting structure would no longer include himself. He said that it would be another diminution of his responsibilities.

Contract Negotiations

[85] Mr Carnie said that within his job description there was an item which referred to negotiation and that the negotiation involved dealing with significant contracts. He was involved in setting up supply contracts with corrugated board and flexible packaging manufacturers. Mr Joy had changed these arrangements without consultation. Mr Joy brought in a consultant from New South Wales, Mr Ian Armstrong, to deal with the restructure of distribution and to handle negotiations. Mr Armstrong had contacted Amcor in relation to packaging contracts and prices. Mr Carnie had known, he said, of Mr Armstrong's appointment in the area of distribution, but had no knowledge of his making contact with suppliers. These events occurred during the latter part of 1999 and during 2000.

[86] Similar circumstances arose in respect of another supplier - W R Grace, the flexible packaging manufacturers, he said. Again, he had no prior knowledge of Mr Armstrong's approach to the supplier. Mr Armstrong asked Mr Carnie for files in relation to the major contracts, but did not ever invite him to discuss the contents of the files.

[87] During cross examination Mr Carnie said that the Amcor contract was negotiated in 1998 with a life of three years and that was the first such contract with Amcor. There were ongoing negotiations with Amcor in respect of any changes in packaging materials. He had the responsibility for ensuring that the pricing structures were within the structure of the contract.

Skins and Hides

[88] Another of the items in Mr Carnie's job description was "Skins & Hides". His evidence was that the Skins and Hides Manager reported to him. Mr Carnie's main responsibility was the profit and loss management which included dealing with the Skins and Hides Manager on matters relating to the purchase and sale of skins, inventory control and various crises. His function was largely that of an overseer, he said. Sometimes he was consulted on staffing and administrative matters. Mr Carnie said that Mr Joy transferred the responsibility to Mr Mike Pearce, the Sales and Marketing Manager. This was done without consultation. Mr Joy just told him that he was going to transfer the responsibility.

Budgets

[89] Mr Carnie said that tasks that would previously have been given to him were not given to him, for example, he was not asked to do the preparation of budgets for Killafaddy's proposed transfer from a domestic plant to an export licence, whereas, historically, any changes would be referred to him so that he could prepare the budgets. These responsibilities were not given to him but were given to Mr Ian Kavanagh.

[90] The budgets he had been preparing at the time of his resignation were for a domestically licensed premise, he said.

Tasks and functions generally

[91] Mr Carnie's evidence was that by July 2000 the red meat administration function was going to Ian Kavanagh, skins and hides had gone to sales and marketing, his role in liaising with government and industry bodies had diminished, his role in relation to negotiation of supply contracts had gone to consultants, and information about meetings, such as the Tasmanian Farmers and Graziers Association were not being circulated to him.

[92] Between September 1999 and July 2000 a large percentage of his tasks had gone, he said, probably 80% once the red meat administration went to House 8.

[93] Mr Carnie said, during cross examination, that he was: still producing weekly estimates; still involved in the preparation of budgets and forecasts (excepting for the development of the Killafaddy proposal); still involved in management reporting, providing export and domestic commentary; still responsible for systems maintenance and development; still doing financial management of cattle financing programs; still attending senior management meetings; and still performing other duties, as required by the CEO, from time to time. He was still working 50 to 60 hours per week. He said that the 80 per cent reduction in his duties and tasks related to things that were about to happen, such as the transfer of livestock and administration and there had been changes in responsibilities. The transfers had been occurring progressively:

"There had been a change in the responsibilities during the course of the year...the negotiation, the industry liaison, the livestock related matters that progressively transferred and the administration function - the fact that that was going to be transferred as well, it all occurred progressively through the course of the year, but the last detail came in July when it was announced that Ian Kavanagh would be taking on the administration responsibilities and removing the administration people to house 8."19

The meeting of 30 June

[94] During 2000 Mr Carnie continued to work on budget preparation, including performing work at home on that task. As in previous years the budget preparation was done largely uninterrupted. Mr Carnie said that Mr Joy had said that only a business catastrophe would cause any intervention and that he would be allowed to do the budget preparation uninterrupted.

[95] On Friday 30 June 2000 a meeting of the red meat management group was scheduled. Mr Carnie had worked on budget preparation until 2 am on the morning of Friday 30 June. Mr Carnie said that he would not have considered that he would have to attend the meeting under the circumstances. He tried to ring Mr Joy to advise him of that. Later Mr Joy rang him. Mr Carnie said that Mr Joy was quite annoyed and agitated. Mr Carnie was later told that Mr Joy had said "what does he think I am, a fucking psychic, I'm the managing director around here and it's about time people recognised that and George will be at the meeting".

[96] Mr Carnie said that he had never before been subjected to those sorts of discussions or that sort of language. He had discussed his difficulties with Mr Joy with a consultant psychologist that Blue Ribbon made available to staff.

After the meeting of 30 June 2000

[97] After the events of 30 June 2000 Mr Carnie's concerns about his future, which, he said, had been in existence since September 1999, were heightened. At about that time he sought advice about his concerns from Mr Terry Edwards [of the Tasmanian Chamber of Commerce and Industry] who had been a close acquaintance for a number of years, and Mr Michael Daly [a legal practitioner]. Mr Carnie said that his concern was:

"...that my role was being taken away from me and that I didn't have a future and I wanted whatever guidance I could get to manage it properly."20

[98] Mr Carnie said that his view was that his days were numbered.

[99] He had first spoken with Mr Edwards when he knew that Agribusiness Partners included Ray Joy; that would have been in August of 1999. It was just a general discussion, he said. The "real discussion" took place when the new position was offered to him in about July [2000]. He spoke to Mr Edwards again after he was made aware of events involving his secretary, Jacqui Hogarth. These discussions were prior to his resignation.

[100] Mr Carnies' evidence was that he spoke to Mr Daly in "July 1999 as well."21

[101] He spoke to Mr Daly about the changes in his role and concerns about the way he was treated.

The Secretary's Lunch

[102] On 26 July 2000 Mr Carnie's joint secretary [shared with Mr Kavanagh], Jacqui Hogarth, was invited to lunch by Mr Joy's secretary, Wendy Brown. Ms Hogarth told Mr Carnie that at the lunch Ms Brown offered her a position as personal assistant to the sales manager. Ms Hogarth said to Mr Carnie that she was told not to worry about George Carnie. She was told that George Carnie had been offered another position, however he may well seek a consultancy but he was expected to resign.

[103] Later that day Mr Joy came to see Mr Carnie and told him that Ms Hogarth had made a number of approaches over a period of time seeking to improve herself within the organisation, and that as a result of her inquiry she was to move to the position of secretary to the sales manager within a week. Mr Carnie said that he called Ms Hogarth in [to his office] and that she was upset and said that what Mr Joy had said was a lie.

[104] Mr Carnie said that he had not been told by anyone that his secretary was going to be allocated other duties.

General Manager Commercial

[105] Mr Carnie said that he had had three meetings with Mr Joy during which he was told that his position of General Manager Commercial would cease to exist. One was in June 2000, another in July 2000 and another on 10 July 2000. At the 10 July meeting:

"...we discussed that position and he said the role of general manager commercial would cease to exist and he advised that the functions that would be transferred would be the administration functions to Ian Kavanagh - the livestock to Ian Kavanagh and Jack Erichsen and that there were a couple of issues that he hadn't yet been able to determine, that was the budgets and the HACH [the "Barnbougle" agistment].22

[106] When cross-examined, Mr Carnie said:

"The point that I'm making is that all of that [eg management reporting] was to cease...yes, I was [still] doing that and all of that was to cease and that's where the 80 per cent came from...

It had all been laid in front of me and told what was going to happen."23

[107] Mr Cameron asked Mr Carnie whether he had asked Mr Joy any questions about the continuing role of the position of General Manager Commercial. Mr Carnie said that Mr Joy "didn't say that it wasn't going to cease."24 He said that they discussed it and that he [Mr Carnie] discussed the fact that the functions were being transferred to other parties.

General Manager Sales and Distribution

[108] Mr Carnie said that at another meeting, on 13 June 2000, Mr Joy had offered him the position of General Manager Sales and Distribution, to be located in House 6. Such position had not appeared on an organisational chart which was distributed and placed on several notice boards. No such position appeared on any documents that Mr Carnie saw.

[109] Mr Carnie said that his understanding of such a position was that the person would be involved in heading up the Tasmanian sales and marketing team which would, of necessity, involve "interfacing" with clients from time to time, and would include having to frequent the distribution areas of the business and the load out facilities, and those things occurred at night. It would have involved frequent visits to and from the warehousing premises. It would mean visiting clients around Tasmania. Mr Carnie said that he was not in a position to travel on a regular basis. He said that the position could not be fulfilled properly as a desk job. He had expressed the view that he would be a square peg in a round hole on each occasion that it had been discussed with Mr Joy.

"I just said it was outside my skill sets or capabilities."25

[110] Mr Carnie's training was in the area of management accounting, he said. He had spent his career in accounting related areas, and was not a sales and marketing person.

[111] During cross-examination Mr Carnie said that he was not given a job description for the new position and the only information that he was given was that the sales manager would report to him and it would involve all the domestic Tasmanian responsibilities for sales and distribution. He was told that his salary would remain unchanged. He denied that Mr Joy had said to him that he could design the job to suit his restrictions and capabilities. He agreed that Mr Joy had said that he thought Mr Carnie did have the skills and capabilities to perform the job. He agreed that he had not asked Mr Joy whether the position would involve working away from the office, but, in his view, it would have to involve such activities.

[112] Mr Carnie said that:

"My belief at the time was that the whole process was designed to extricate me from Blue Ribbon."26

The evidence of Mr Joy

[113] Mr Joy testified that prior to the arrival of Agribusiness the company had been run by a central senior management group of about eight or nine people who essentially ran the business with the assistance of the CEO. The Agribusiness view was that there should be a decentralised structure. He said that all the managers were concerned about and unsettled by the change.

[114] Before he had returned there had been changes, for example in the logistics area, where a start was made by getting consultants in the logistics area to provide a preliminary view of potential savings.

[115] During 1996 to 1998 he had not had specific knowledge of Mr Carnie's role in terms of his job description, but he was:

"involved as essentially an extension of Tony Munns in terms of doing project work as well as his normal duties."27

[116] When asked, during cross examination, whether at the time the new board took over Mr Carnie was effectively second in charge to the CEO, he replied `that may have been his view"28. When asked whether that was the view of others in the company, he replied "...it may have been their view". When asked whether Mr Carnie was the most senior manager in the company, he replied "not in my view." Mr Joy agreed that Mr Carnie was General Manager Commercial and that covered red meat which was about two thirds of the business.

[117] He agreed that Mr Carnie had management of livestock procurement and its pricing as one of his roles and he agreed that was a critical function. He disagreed that it was Mr Carnie's core function. He said that another large part of Mr Carnie's duties was financial reporting. He agreed that, at that time, Mr Carnie had the responsibility for overseeing the management of "Barnbougle". He also agreed that Mr Carnie had responsibility for the budget preparation for red meat export and skins and hides.

Contract Negotiations

[118] Mr Joy's evidence was that Mr Carnie had been involved in major contracts in 1996 and 1997. Since Mr Joy had returned in 1999 those contracts had been reviewed as part of the project that was initiated in respect of logistics. A report had been commissioned from consultants prior to Mr Joy's return. Mr Joy, after his return, engaged Mr Armstrong to review and to talk to the consultants. Mr Armstrong still provides advice to the company.

[119] Mr Joy's evidence during cross examination was that before he became CEO Mr Carnie had had some responsibility for special projects, but said that he did not recall transferring that responsibility away from him.

[120] He agreed that had employed a Group Projects Manager, but said that those special projects were not necessarily projects that Mr Carnie would have done. He agreed that the responsibility for Amcor had been taken over. He did not agree that the dealings with Dickinsons were being transferred away from Mr Carnie.

Meetings, Discussions, Consultation, etc

[121] Mr Carnie had responsibility for the commercial relationship between Woolworths and the company for red meat. He had suggested that Mr Carnie be the "centre point" in terms of lines of communication. This did not change during the [rest of] the time Mr Carnie was with the company.

[122] Mr Joy said that he did not recall Mr Carnie being specifically excluded from any direct dealing or meetings with the principals of the Dickinsons company. There were, he said, certain things that he and Mr and Mrs Dickinson had discussed privately about their business and Blue Ribbon's business.

[123] Direct responsibility for the cattle at Barnbougle was the role of Craig Milner, who reported at that time to George Carnie. Mr Joy said that there had been advice to Mr Carnie, even prior to Mr Joy's return, that Mr Milner was not performing adequately. He had discussed Mr Milner's competence with Mr Carnie, he said.

[124] In relation to the Livestock Advisory Board, Mr Joy said that the idea had been discussed but it had never been formed. There were a number of nominees put forward, but the group never met.

Livestock Procurement

[125] When asked who was responsible for livestock procurement during Mr Carnie's period of employment with the company, Mr Joy said that livestock procurement was largely dealt with in red meat management groups, because it impinged on more than Mr Carnie's responsibility. Later during his evidence he agreed that livestock procurement was one of Mr Carnie's roles.

[126] Mr Joy said that he understood that Mr Carnie was still performing his role [in livestock procurement] at the time of his resignation. The devolution to plant managers had been discussed prior to Mr Carnie leaving in the context of a more efficient model, but was not implemented prior to Mr Carnie leaving.

The Meeting of 30 June 2000

[127] Mr Joy said that there were occasions when people could not attend the red meat management group meetings in person and generally there would be a telephone hookup. At the time of the budget preparation for 2000 Mr Joy had given approval for Mr Carnie to work from home and concentrate on the budgets. On a day in late June 2000 Mr Carnie had not been at work. At the time of the meeting Mr Carnie was missing, and Mr Kavanagh informed Mr Joy that he had been phoned by Mr Carnie and told that he was not attending that meeting, Mr Joy said that he was very angry because he thought that it was very rude and that it behoves senior managers to make the time available to discuss the business.

[128] He went from the meeting room, he said, to the adjacent office and spoke to Mr Carnie by telephone. Mr Joy asked why Mr Carnie was not at the meeting and his response was that he was working on the budgets. Mr Joy said that the volume was louder than normal conversation. He then rejoined the meeting and Mr Carnie then participated by telephone.

[129] When cross-examined Mr Joy agreed that it had been made clear that Mr Carnie's work on the budget should not be interrupted "other than a business catastrophe, yes."29

The Secretary's Lunch

[130] Mr Joy's evidence, during cross-examination, was that his secretary had borrowed his car on 26 July 2000 to take Jacqui Hogarth [Mr Carnie's joint secretary] to lunch, with his knowledge and consent. It was suggested to Mr Joy that he had asked his secretary to sound out Ms Hogarth about moving to the position of personal assistant to the sales manager. He denied that the lunch invitation was at his request or at his direction. Mr Joy said:

"She took Ms Hogarth to lunch to get to the bottom of what was going on, yes."30

[131] He said that Ms Hogarth had made two enquiries in relation to taking up another role, and that she had expressed an interest in a role in the sales area. When it was put to her, she was not interested, for some reason. He said that he wanted to find out why she had changed her mind.

[132] Mr Joy was asked whether, on that afternoon [after the lunch], he had told Mr Carnie that Ms Hogarth was going to move to the position of Russell Young's secretary within a week; he said that he would have told Mr Carnie. Mr Joy said that he could not recall bringing Mr Carnie's attention to the reallocation of his secretary prior to that date.

General Manager Sales and Distribution

[133] Mr Joy said that he had discussions with Mr Carnie about a proposed new position within the company as the General Manager Sales and Distribution. It would have been in the middle of 2000. He said that the discussions were very broad. He thought that the only inquiry that Mr Carnie made was whether or not there would be any change in his remuneration.

[134] In answer to a question as to why, given Mr Carnie's background with the company, he thought he would be the appropriate person to manage the sales team, Mr Joy said that he was looking for an administrator with good financial skills and an understanding of the business and the client base. He could not say that he had explained that to Mr Carnie at the time, the conversations were rather superficial, he said.

"He had a view after some weeks, I would imagine...that he felt that his skill sets didn't fit the position. Well, I found that rather odd, as I said to him, because at that stage there had never been a formal discussion about the position and the tasks that were required of that position."31

[135] Mr Joy said that there was a general expectation and a desire on his part to have the position in place by October of 2000. He said that this was being talked about in the middle of 2000 and that it should be in place by September or October. He had mentioned this date to Mr Carnie.

General Manager Commercial

[136] Mr Cameron asked Mr Joy whether or not Mr Carnie knew what would happen if he were to refuse the new position. Mr Joy said:

"There was discussion about what would happen to the business, and clearly it was in a devolvement strategy, yes.

What was the discussion? Can you recall?...........No, I can't, but as I recall the broad thrust was his position remain at that stage and as today it still does remain.

So, that's the general manager, commercial, red meat?...........The task that he was doing and the business that is still there."32

[137] During cross-examination it was suggested to Mr Joy that in June and July he had three meetings with Mr Carnie where he told him that the position of General Manager Commercial, in the form that it was in July 2000, was going to cease to exist. Mr Joy said:

"Cease to exist, the form. Certainly, the form would have changed with the restructuring as is evidenced today."33

[138] Mr Joy was asked whether he agreed that he had a conversation with Mr Carnie during which he indicated that administrative functions would be going to Mr Kavanagh:

"Administrative functions, certain administrative functions and they have done and that relates to the day-to-day operations of a site. In this case Mr Kavanagh was the Killafaddy abattoir including the distribution facilities."34

[139] He agreed that he was transferring administrative functions to Mr Kavanagh, but he said that these were not the administrative functions that Mr Carnie was doing, he said that they were of a much lower level.

[140] When asked why, if the position of General Manager Commercial was not going to cease, Mr Carnie had been offered another position, Mr Joy replied:

"Because the company had a need."35

[141] He agreed that the need was still unfulfilled as at the end of April 2001. He agreed that the new position had not been advertised and agreed that they had not engaged consultants to locate a person to fill the position of General Manager Sales and Distribution.

The evidence of Ms Kerry Joy Tindall - Mr Carnie's fiancee - ex-employee of Blue Ribbon

[142] Ms Tindall's evidence was that she had known Mr Carnie since 1994. She was employed by Blue Ribbon at that time, and was continuously employed there until she resigned, a week before Mr Carnie had done so. Ms Tindall testified that Mr Carnie had "lived and breathed Blue Ribbon"36 and had worked very closely with Mr Munns. This attitude toward his work did not change when Mr Joy took over as CEO. She said that during 2000 there were occasions when Mr Carnie appeared to be affected by his work. She said she thought that was:

"...from the time that he found out that all his positions were being taken off him, slowly."37

[143] She said that she thought that Mr Carnie was very worried and very concerned about his position.

[144] On the last of day of June 2000 she had heard Mr Joy speaking to someone on the telephone. She said that he was "very cranky, very loud". Ms Tindall said that she found out afterwards that he had said words to the effect of, what does he think I am, an effing psycho, I'm the effing CEO here and he'll come to my meetings, and slammed the phone down. She asked Jacqui Hogarth who Mr Joy had been speaking to, and she was told that it was Mr Carnie.

[145] Ms Tindall said that after that conversation Mr Carnie was most upset.

[146] At the time that Mr Carnie resigned from his position at Blue Ribbon, he had no other job to go to, she said. As at the date of the hearing he had no income at all.

The evidence of Mr Ian Raymond Kavanagh - ex-employee of Blue Ribbon

[147] Mr Kavanagh testified that he was a former employee of Blue Ribbon who had worked there from 1996 until he was made redundant on 5 January 2001. His position was that of Operations Manager. Shortly after he started he became part of the senior management group.

[148] Mr Kavanagh said that at the time Mr Munns was CEO, Mr Carnie was:

"...looking after livestock procurement or managing livestock procurement. He would also manage the administrative effort that put together the weekly profit and losses and do the monthly reconciliations of those results. He would handle major accounts such like as Amcor - the packaging supplier, some of the other major accounts. I think another was Hydro, from memory. He had an administrative effort reporting to him and he was fairly senior; I would have, in my view put him second to Tony in the business."38

[149] He agreed that Mr Carnie's administrative responsibilities included the plant at Killafaddy and the Smithton operation.

[150] Mr Kavanagh said that after Agribusiness Partners acquired a majority shareholding in Blue Ribbon Mr Carnie's functions stayed as they were for a short period, but, as time went on the structure started to change and:

"...George's level in the business seemed to have diminished to me, anyway."39

[151] His understanding was that there was a livestock advisory panel appointed that Mr Carnie wasn't part of and that that was an area that was a key responsibility of the general manager of commercial.

[152] Mr Kavanagh had told Mr Carnie that he would be taking over red meat administration. He agreed that was one of the key functions that Mr Carnie had performed for some years. He said that Mr Carnie had been totally responsible for red meat administration.

[153] The senior management group was disbanded when the company decided to branch out into the individual business units, he said, probably two or three months after the new board took over.

[154] Mr Kavanagh's evidence was that it came as no surprise to him that Mr Carnie resigned after he [Mr Kavanagh] was given the task of creating a red meat administration team.

The evidence of Mr Christopher Norman Summers - Business Manager Smallgoods - Blue Ribbon

[155] Mr Christopher Norman Summers testified that he was employed by Blue Ribbon and had commenced working there in 1973. His current position was Business Manager of Smallgoods.

[156] During the twelve months before Mr Carnie's dismissal the only change that he had noticed in the work that Mr Carnie performed was that he had become the "interface" on behalf of Blue Ribbon with the [Woolworths] Sydney office.

[157] He believed that before Mr Carnie left:

"...there was a move where the actual livestock was moving away from George - or in the process of being - to the person that was employed in the sales area to take over part of the role of Mike Pearce, so he was in the process of taking over the livestock side of the business - coordinating that."40

[158] Mr Summers said that during the previous eight years there had been quite a few changes in Mr Carnie's position relative to the CEO. When Mr Munns was there there had been a heavy reliance on Mr Carnie, particularly in the export and red meat part of the business, and they had worked closely together.

[159] Mr Summers agreed that in June and July of 2000 Mr Carnie had told him that the livestock side of the business was being moved to Greg Kimpton. He had also mentioned that the clerical staff in red meat would be reporting to Ian Kavanagh. At the time of the discussion they were reporting to Mr Carnie.

The evidence of Mr Jack William Erichsen - Operations Manager - Smithton - Blue Ribbon

[160] Mr John William Erichsen testified that he had been employed at Blue Ribbon for almost four and a half years. For the last four to six months his position was that of Operations Manager at Smithton. Prior to that his position had been Plant Manager Smithton.

[161] His responsibilities and duties as Operations Manager were the day to day running of the plant and overseeing employment, industrial relations and production.

[162] He said that Mr Carnie was the livestock manager and controlled how the livestock department worked.

[163] Mr Erichsen's understanding was that the philosophy of the company was to make three distinct operational units - red meat at Killafaddy, smallgoods and the Smithton export division. This had been his understanding since Ray Joy took over.

The evidence of Mr Gregory David Kimpton - Export Sales Manager - Blue Ribbon

[164] Mr Kimpton gave evidence that he was the Export Sales Manager for Blue Ribbon, which position he had held since the end of April 2000. That was when he had commenced at Blue Ribbon.

[165] His involvement with George Carnie since had included dealing with him regarding anything to do with the sales or the costs. He also used Mr Carnie's past knowledge of the company and his knowledge of the Tasmanian industry and had sought his advice on various subjects and issues.

[166] Mr Kimpton said that during that time, the level of his dealings with Mr Carnie didn't change.

[167] When cross-examined, Mr Kimpton denied that it was the case that he was aware, prior to Mr Carnie's departure, that the red meat division was going to Mr Kavanagh. He denied that Mr Carnie had made him aware of the transfer of the red meat functions to Mr Kavanagh prior to his departure.

[168] Mr Kimpton denied that Mr Joy had discussed with him in about July 2000, that livestock buyers would be reporting to him.

[169] He also denied that Mr Carnie had told him that his role as General Manager Commercial was coming to an end, although he agreed that Mr Carnie had told him that he had been offered the position as General Manager Sales and Distribution. Mr Kimpton said that Mr Carnie had said that due to his personal circumstances it would be difficult to service the customers. He said that was due to Mr Carnie's disability.

[170] Mr Kimpton denied that he had begun to assume responsibilities for costings before Mr Carnie left, although later in his evidence he agreed that he had done so.

The evidence of Mr Russell Frederick Young - State Sales Manager - Blue Ribbon

[171] Mr Young said that he was the State Sales Manager for Blue Ribbon and had been with the company for seven years.

[172] His duties as State Sales Manager involved looking after key accounts (Woolworths and Coles); depots in Hobart and the North West Coast; and the sales team in Launceston.

[173] The initial discussions with Mr Joy [in relation to the changes] were that there was going to be a coming together of the sales, and that Mr Joy would like Mr Young to take over the domestic side. There would be a general manager, who would not be Mr Young, who would report to that person.

[174] The company decided it was going to put sales together in House 6, previously it had operated out of House 8. The amalgamation into House 6 took place in June 2000. Mr Joy expanded upon the new position in June 2000, after they moved into House 6. The content of that conversation with Mr Joy was:

"...He...told me that he wanted to discuss, in confidence, his thoughts. Those thoughts consisted of George taking over - probably my words not Ray Joy's, but general manager of sales and I also believe he included distribution in that at the time...My memory tells me that export was mentioned...the general manager of sales would have complete control over sales and distribution, that I would report to that person and it would be on a management type basis."41

[175] He asked Mr Joy "why Mr Carnie?" and Mr Joy had said that he believed Mr Carnie was a good organiser and had some marketing skills and would be ideal in the position. Mr Young said that he asked Mr Joy when it was going to be announced and he was told that he would have it in place by October.

[176] Mr Young said that he asked Mr Joy if Mr Carnie was still going to work out of House 7 and Mr Joy replied that he would be moving to House 6 and whatever needed to be done would be done to make it workable.

[177] He said he asked Mr Joy how he saw the position as far as personal contact with customers was concerned. His reply was that if there needed to be any communication between Mr Carnie and Woolworths it could be done in Hobart. If there was a need to go to Melbourne, then Mr Carnie would have to go to Melbourne (Melbourne being Coles).

The events of August 2000 - Mr Carnie's resignation and associated matters

The evidence of Mr Carnie

[178] On 1 August 2000 Mr Carnie spoke to Mr Joy:

"I said that I'd considered the position of general manager sales and distribution and the fact that my function - or the position of general manager commercial was to cease to exist; that I didn't have the skills sets or capabilities to carry out that function and that with a great deal of regret after almost 18 years that I had no choice but to resign my position from the company.

...

He [Mr Joy] said, well can't say that I'm surprised, I expected it."42

[179] Mr Joy said that they would need to work out the transfer of his responsibilities over the next six months, at which point he told Mr Joy that he did not have a contract and was required to give only two weeks' notice. Mr Joy then said that consultancy arrangements for the transfer of responsibilities could be looked at. Mr Carnie's evidence was that he said:

"...Given the nature of my resignation I would expect to be compensated for my years of service..."43

[180] Mr Joy said words to the effect that it was not something that the company would consider.

[181] At that meeting Mr Joy asked Mr Carnie what he was going to do, and Mr Carnie said to him:

"...I'm going to talk to my son and see what opportunity there was for some consulting type work."44

[182] When cross-examined, Mr Carnie said that he had said he would talk to his son to see if there were opportunities for consulting arrangements, but denied that there were existing opportunities that he was looking at. The next day Mr Carnie presented Mr Joy with the following letter:

"August 1, 2000

Dear Ray

This letter is confirmation of our discussions today and is in response to your recent offer to me for the position of General Manager Sales and Distribution (Tasmania) in which it was outlined to me that due to the restructuring of the business, my role of General Manager - Commercial would cease to exist. Having considered the position as offered and where I feel my skill sets lie, I regret to advise that after 17 ½ years of service I have no choice but to tender my resignation effective from close of business on Tuesday, 15 August 2000.

As requested I would be prepared to consider continuing to provide support in a consultancy role that would enable the effective ongoing delivery of some of my key responsibilities for a period of time as determined by the Company and myself. In addition, I would cooperate to facilitate the smooth transition of my other responsibilities and the effective communication of my termination to both internal and external parties. These requests would be completed, subject to reaching a severance package satisfactory to me that would ensure I was not disadvantaging myself by limiting my opportunities outside of Blue Ribbon due to any extended transition or consultancy period.

...

Yours faithfully

George Carnie"45

[183] There was a meeting between Mr Carnie and Mr Flynn on 10 August. Mr Flynn took notes at that meeting and gave a copy of those notes to Mr Carnie. The notes indicate that Mr Carnie said to Mr Flynn inter alia that: he had been offered the position of General Manager Sales and Distribution; a salary had been discussed and it would stay as it was; his current position would cease to exist; he had no choice other than to offer his resignation; Ray Joy had said that couldn't say he was surprised, he had expected it; he had said to Mr Joy that the function did not require his skills set; the new position was to be announced on 1 September for effect on 1 October; the last ten months had seen a progressive diminution of his core responsibilities; after 18 years the company [should] give some recognition; he would expect 2 weeks pay for every year of service on the grounds that the position is redundant; and the move to House 8 was further confirmation that the position was redundant.46

[184] On 10 August 2000 there was a telephone conversation between Mr Flynn and Mr Carnie. Mr Flynn had said that Ray Joy was denying that the offer of the position had taken place, that there was no offer. Mr Joy had said that Mr Carnie was not telling the truth and was telling the same lies that he had told to the previous board and that had caused him [Mr Joy] to be sacked from the company.

[185] During cross examination, Mr Carnie agreed that there were discussions in relation to the possibility of consultancy arrangements. These had been with Mr Flynn and the remuneration that had been discussed was $500 or $600 a day. Two days or two and a half days per week were proposed. He said that there had been some confusion during his discussions with Mr Flynn, but that he was not going to accept a consultancy arrangement without consideration of the redundancy [payment].

[186] On Monday 14 August Mr Flynn delivered to Mr Carnie a letter signed by Mr Joy. The letter read:

"Dear George

I refer to your letter of 1 August, 2000...

...

Your letter is not an accurate reflection of all matters discussed on 1 August 2000. Specifically the following is my recollection of those discussions:-

  • I indicated the position of General Manager - Commercial was likely to undergo some restructuring in the upcoming months.

  • There was no discussion, or anything formalised in the event you decided to remain in the position of General Manager - Commercial.

  • At no stage were you advised that the position of General Manager - Commercial would be redundant. (A number of different elements have been implemented since September 1999 with your knowledge and cooperation).

  • We discussed the possibility of a position of General Manager - Sales & Distribution (Tasmania). During these discussions I advised -

  • The scope of the position of General Manager Sales & Distribution has not yet been designed,

  • If of interest to you, the design of the position of General Manager Sales and Distribution (Tasmania) would be determined through consultation with you.

  • If such a position was agreed and to be offered to you, it would not have involved any diminution of your employment conditions or status.

  • I advised you that the Company believed you to be very capable of performing the anticipated duties in that role.

  • I advised that should the position have been offered to you, the Company was prepared to assist you in any way possible in ensuring that you adjusted to that proposed position.

...

Subsequent to that discussion, you tendered your resignation effective from close of business August 15, 2000. I accepted your verbal resignation but was unable to accept the requirement of a gratuitous payment above your entitlements. On receipt of your letter I discussed with you my concern that the letter did not accurately reflect our prior discussion.

...

Yours sincerely

Ray Joy"47

[187] Mr Carnie agreed that Mr Joy had come to see him after receiving his letter, but, he said, Mr Joy did not query its contents, only the tone:

"I put it you that he queried the content and said to you, this is not what we discussed. This is not what happened?...........No, I categorically and absolutely - that is not what was said. What was said was, the tone of the letter. He said, this is not the tone of what we discussed yesterday. He said, it was amicable."48

[188] Mr Carnie testified that Mr Joy did not at any stage indicate that the position of General Manager Commercial would still be available to him, nor did he say that Mr Carnie had misunderstood and that the position would not be redundant. He was not advised by Mr Joy that he was proceeding on a wrong understanding of what was involved. Nor did Mr Flynn at the meeting of 10 August say anything to the effect that he had misunderstood the situation, or that his position of General Manager Commercial would not cease to exist.

[189] Mr Carnie said that in his letter written on the evening of 1 August 2001 [following his discussion that day with Mr Joy] he had put into print the precise words that were discussed and those words:

"...included the cessation of my position as general manager commercial and the offer of the position of general manager sales and distribution which included the dates of commencement...it was going to be announced on 1 September for effect from 1 October. So it wasn't speculation, even the dates were being discussed."49

The evidence of Mr Joy

[190] When asked if there had been any prior indication that Mr Carnie was resigning, Mr Joy said yes. He said that Mr Carnie was clearly under a great deal of pressure. His health was not good at that time, and he was completing the budget exercise, both of which put a lot of pressure on him.

On the day of the resignation the discussion was very brief:

"It was a very brief discussion - the first stage - which was he said I'm resigning from the business. I can't say I was surprised given that his demeanour and the summonsing to his office at no notice basically to have this discussion."50

[191] Mr Joy said that they talked about the notice. Mr Joy said to Mr Carnie that they had six months to work out the transition and Mr Carnie responded by saying that he was obliged to give two weeks notice and that he did not have a contract.

[192] He asked Mr Carnie what he intended to do and Mr Carnie indicated that he was going to be consulting; that would give him greater flexibility in terms of his lifestyle. He indicated that some of the consultancy work may revolve around some of the work he had been involved in with his son's business.

[193] Mr Joy's evidence was that Mr Carnie had given no other reasons for the resignation at the time:

[194] Mr Joy said that he asked Mr Carnie whether he would consider working with Blue Ribbon as a consultant. Mr Carnie had said that may be possible but only if he got recognition for the efforts he had made over the previous 17 odd years.

[195] Mr Joy said:

"This person had resigned and now was seeking to reorganise that statement to give him a financial advantage he wasn't entitled to."51

[196] Mr Joy said that after he received Mr Carnie's letter of resignation52 he had a discussion with him, during which he said to Mr Carnie that the letter did not reflect their discussions of the previous day in terms of the content:

"This is clearly a fabrication. We talked about - there was never an offer - because an offer implies that there is a defined position and position description and that the ceasing of the role is not correct either...I pointed those out. He said - his words to me were of the effect that, these were what we discussed yesterday, it just looks a bit more stark in writing, or words to that effect."53

[197] When asked whether he had at any stage in those discussions said to Mr Carnie not to resign, Mr Joy said that he did not believe he did.

[198] Mr Joy said that the reasons for the letter to Mr Carnie dated 14 August 2000, was that he believed that the discussions [regarding a consultancy] had reached a point where there was no likelihood that they could be concluded and that therefore they had to accept the resignation.

[199] In his letter he had indicated that the position of General Manager Commercial was likely to undergo some restructuring in the upcoming months. He was asked what he had indicated to Mr Carnie in that regard:

"...the specifics wouldn't be clear to Mr Carnie or myself. What was happening was, we were devolving responsibilities of business units and therefore, clearly, there will be a restructuring of what was essentially a centrally run business..."54

[200] Another point made in Mr Joy's letter was that there had been no discussion or anything formalised in the event that Mr Carnie decided to remain in the position of General Manager Commercial. Mr Joy said that the reason it was necessary to put that in writing was because Mr Carnie, in his letter, had said that he had been told that the position would cease, and that was not correct.

[201] Mr Joy was asked, had Mr Carnie not resigned from the business, whether the company would still be employing him today as General Manager Commercial, Mr Joy replied "Yes, it would"55

[202] Mr Joy said that Mr Carnie "may have" said that he did not have the skill sets to be General Manager Sales and Distribution `if that was discussed at that meeting."56 Mr Joy said that it was a very short meeting, that Mr Carnie got quickly to the point, which was that he had taken a decision to resign.

[203] Mr Joy agreed that he had said the words "I can't say I'm surprised, I expected it". He said that the reason [he was not surprised] was because of being called to a meeting at short notice.

[204] Mr Joy said that he would never have told Mr Carnie that his position of General Manager Commercial would cease to exist. He agreed that the basis of the resignation by Mr Carnie was on an incorrect assumption. He agreed that he had not asked Mr Carnie to withdraw the resignation.

[205] When re-examined Mr Joy's evidence was that on no stage at the meeting of 1 August 2000 had Mr Carnie said to him that he wanted to remain as General Manager Commercial. There was no discussion about Mr Carnie remaining in that position, he said.

The evidence of Mr Flynn

[206] Mr Flynn said that, two or three weeks before Mr Carnie resigned, Mr Joy had mentioned to him the possibility of Mr Carnie taking on the role of general manager of sales and distribution or marketing. Mr Joy had said that he thought Mr Carnie had the skills to do the job.

[207] Mr Flynn agreed that he had a lengthy acquaintance with, and knowledge of, Mr Carnie and his abilities. In his opinion:

"George Carnie has a great deal of abilities, but...at the time I was told about the possibility of Mr Carnie taking that role, yes, I was doubtful that was a position for George Carnie."57

[208] Mr Carnie's resignation had come as a surprise to him, he said. The day after Mr Joy received Mr Carnie's letter he was called to Mr Joy's office, and asked to read it. Mr Joy said that it [the letter] was not the way it was addressed in the meeting with Mr Carnie. He was asked to have discussions with Mr Carnie regarding the letter. Mr Joy had asked him to broker some arrangement. Mr Joy had specifically asked him to see if he could bring Mr Carnie back into the business. He said that there were a number of off the record discussions with Mr Carnie, of which no records were kept.

[209] The first official meeting was held in his office. When asked whether the position of Mr Carnie not resigning and staying with the company was put to Mr Carnie, Mr Flynn said:

"I think I put a number of proposals to Mr Carnie but his position was, we'll say, fixed and I think I moved away from, withdraw the resignation, if I ever said that to him but that was the inference to, is there some way that we can get the contract in place."58

[210] Mr Flynn said that there were a number of negotiations in relation to a consultancy contract, both on and off the record. He agreed that the notes placed in evidence59 were a copy of his notes in relation to the on the record discussions.

[211] During the discussion that he had with Mr Carnie in relation to a perceived redundancy, his understanding of that conversation was:

"...I asked George a question which is in those notes, why not wait for the redundancy to occur, or words to that effect.

... what did he indicate to you leading up to that comment...........That the position didn't exist any more, and my retort was, well, if that's the case why not wait for it to happen.

...He responded...- impossibility of the position with Mr Joy, the job has gone, there's going to be an announcement on 1 September for implementation on 1 October"60

[212] In the end, when no agreement was reached, Mr Flynn drafted a rough copy of a letter of acceptance of Mr Carnie's resignation. He said that it was Mr Joy's way to redraft letters that he put together.

[213] When cross-examined, Mr Flynn said that Mr Joy had been very clear from the outset that Mr Carnie's position was not redundant:

"...Mr Joy, from the very outset was quite clear with me that George's position was not redundant. He was also very clear that the position of sales and distribution general manager had not at that stage been offered to George; that they had spoken about it. Now that was his position that he gave to me."61

[214] He said that there was no doubt that it was Mr Carnie' perception that his position would be redundant. He also agreed that it was clear to him that it was Mr Carnie's position that the option of General Manager Sales and Distribution was not something that he was suited for.

[215] Mr Flynn agreed that (given that he knew Mr Carnie was resigning in the belief that his position of General Manager Commercial was vanishing) he had not asked Mr Carnie to withdraw his resignation, and he could not recall any instructions to do so. His brief was to offer Mr Carnie a contractual solution, not a reinstatement to the company.

[216] Mr Flynn agreed that the reason for his brief to arrange for Mr Carnie to be engaged as a consultant was to enable a transfer of Mr Carnie's functions to the company, but, as well, the CEO did not want Mr Carnie's knowledge of the business and the history of the business to be lost.

The events at Blue Ribbon after 15 August - the restructuring of Blue Ribbon after Mr Carnie's departure

The evidence of Mr Kavanagh

[217] Mr Kavanagh said that, to his knowledge, no-one had been appointed to the position of General Manager Commercial. No-one at Blue Ribbon had ever suggested that the position of General Manager Sales and Distribution would be created (except for George mentioning it).

[218] Prior to Mr Carnie's resignation Charles Graham was the distribution manager and Mr Russell Young was responsible for domestic sales. Mr Greg Kimpton was responsible for export sales. At the time of Mr Kavanagh's redundancy [5 January 2001] none of that had changed.

[219] Mr Kavanagh said that after Mr Carnie left:

"...there were a couple of other appointments made in the accounting area, but I understood them to be more to do with the finance and admin from a corporate point of view than specifically red meat administration."62

[220] During cross-examination Mr Kavanagh said that it would be a surprise to him if Lynette Broomby's position was the commercial manager of the red meat group.

[221] Mr Kavanagh said that what Mr Carnie had done in terms of managing the [red meat] administrative effort had been given to him.

The evidence of Mrs Lynette Alice Broomby - Commercial Manager - Red Meat Group - Blue Ribbon

[222] Mrs Broomby testified that after Mr Carnie left the company she was offered the position of General Manager, Commercial Red Meat, which position she still held.

[223] Her duties initially involved "more or less" controlling the transactions that took place through the HACH financing facility; responsibility for the Smithton estimates; review of red meat estimates at Killafaddy; participating in the red meat planning group, including taking minutes; profit and loss; comparison to budgets, with an expectation that she would prepare budgets in the next budget cycle, and corporate management accounting issues.

[224] When asked whether there were any aspects of Mr Carnie's work that she did not do, Mrs Broomby said that she did not do livestock procurement, and that she did not do the major customers work with Woolworths and Coles.

[225] Her contract title was Commercial Manager, Red Meat Group. When she took on the role the title was General Manager, Commercial Red Meat; she chose to drop "General Manager" because it was too much of a mouthful, she said.

[226] Mrs Broomby said that the Livestock Procurement Manager, Mr Kimpton, did not report to her, nor did the Manager Skins and Hides, Mr Wayne Jones.

[227] Mr Kevin Farrelly, Killafaddy administration had reported to her, but now, with a change of roles, his function was moved to Ian Kavanagh, as had happened with the Smithton site also.

[228] She had not at any time since taking on the position of Commercial Manager, Red Meat Group, had any role in planning, organising, directing, coordinating or controlling the purchasing of livestock, although she had been involved in margin analysis, which is a financial function. Livestock buyers had not reported to her.

[229] She assisted Mr Joy in the development of plans for the red meat area, she said, which involved processing figures.

[230] Mrs Broomby agreed that, in effect, her role was a financial planning one, with some system development. The negotiation of supply contracts had been limited to information, but she had had no major contracts negotiation responsibility, although she expected to in the future. Mr Joy had responsibility for major contracts, but she had a role in ensuring compliance.

[231] Mrs Broomby agreed that she had assumed only some of Mr Carnie's functions and that other functions had been "hived off" around the organisation.

Other issues - Provision of facilities for Mr Carnie; alleged "Pattern of a Purge"; Credit of witnesses - Mr Joy's background and Mr Carnie's insurance claims.

Physical facilities

The evidence of Mr Carnie

[232] Mr Carnie's evidence was that he has particular needs because of his disability. He explained the precautions and medications he has to take to ensure that his bladder and bowel evacuation needs are met and the adverse medical consequences if they are not. His needs included being in very close proximity to toilet facilities.

[233] He described what was involved in transferring from his vehicle to his wheelchair, a process that takes approximately five minutes. He said that if it is raining the seat of the chair gets wet and that is a hazard because when sitting in the rain quite a bit of the body gets wet, and that can have severe consequences in terms of his health.

[234] He said that in 1993 the Commonwealth Rehabilitation Service (CRS) provided advice and expertise so that House 1 could be modified to meet Australian Standards. Blue Ribbon arranged for a dedicated wheelchair lift to be installed, a toilet facility was provided and a carport was erected.

[235] Mr Carnie said that in 1998, when Mr Munns was still CEO, an attempt had been made to relocate him and the clerical export people to House 7. He said that the attempt had been made by Ray Joy. The move had not taken place because others had prevented that from occurring, and that the CEO had reasons for not doing it at that time. For the time that Mr Munns was CEO he had remained in House 1.

[236] When Mr Joy became CEO Mr Carnie was moved out of House 1 to House 7, along with the export sales manager and the export clerical staff. This was in November 1999.

[237] The existing toilet facilities in House 7 were modified for disabled access. To Mr Carnie's knowledge the CRS had no input into the design of the modifications. Initially no covered parking was provided at House 7. Subsequently, he said, an awning was put over the doorway entrance to the house and that provided some protection, but it was not up to the standard of that provided at House 1. Pads had been put in place ready for a carport of the same standard. This had happened before Mr Joy became CEO. The carport was not completed because the Council would not allow the erection of a construction so close to the boundary. Mr Carnie said that he was not aware of any application for exemption being sought from the Council.

[238] Mr Carnie said that Ms Tindall had inquired on his behalf about the construction of the carport because there were odd days when it was raining and the umbrella did not provide appropriate cover. He said that he was aware of a discussion between Ms Tindall and Mr John Phillips, the company engineer, during which Mr Phillips said that a carport would not be built at House 7.

[239] When the position of General Manager Sales and Distribution was discussed he was told that he would be moved to House 6, he said. To his knowledge there was no disabled toilet facility in House 6:

"No, there wasn't and I actually discussed that with the human resource manager at the time and he made comment that the facility probably wasn't suitable for the number of people in there, it was only just a small box in the middle of the room."63

[240] Mr Carnie said that there were extensive modifications to House 6 during the latter part of the financial year of 2000 to accommodate the new sales team structure, at a cost of somewhere around $150,000. There was no capital expenditure allocation notified to him in his position of General Manager Commercial for the provision of a disabled toilet facility.

[241] During cross examination Mr Carnie said that the construction of the disabled facilities in House 7 was done in 1998 when Mr Munns was CEO. He agreed that, apart from the carport awning area, the facilities at House 7 were adequate. He said that the awning only came about half way across the car. Often there were prevailing winds and rain. He agreed that Mr Joy was the person with the authority to authorise expenditure to rectify the problem and that he had not asked Mr Joy to do so.

The evidence of Ms Tindall

[242] Ms Tindall said that she had questioned Mr Joy about the facilities provided at House 7. On a couple of occasions she had spoken to him about the lack of a carport and the fact that in the rain Mr Carnie had to have someone there with an umbrella to try to prevent him getting wet. She said that Mr Joy's answer was that at the time it wasn't raining so he could not see that it was necessary to have the carport moved.

[243] During cross examination she said that after speaking with Mr Joy she had a word with John Phillips, who was in charge of the buildings. Mr Phillips went and saw Ray Joy and then they put an awning up. For about half of the time Mr Carnie was in House 7 there was no awning, she said.

The evidence of Mr Flynn

[244] Mr Flynn said that he had put together a couple of plans in relation to the modification of House 7, before Mr Joy came to the company. He said that he had wanted Mr Carnie to be transferred to House 7 because he wanted him to be more accessible, and that he had lobbied Mr Munns in this respect.

[245] He could not recall when the carport pads had been put in, but his intention was to lift up the carport and relocate it. That did not take place. It needed to be ten feet from the fence, or similar distance, and he was told that would be the problem with the carport.

[246] Mr Carnie did not move into House 7 until after Mr Joy came.

[247] When cross examined Mr Flynn said that he was aware that House 6 had been recently renovated and that the facilities were for able-bodied people. There was wheelchair access at the front and a step was smoothed out into a ramp. He said the toilets weren't big enough for a wheelchair, and that was obvious to most people. He was not aware at first hand of any modifications to be made to those toilet facilities, but there was some talk about what could and couldn't be done to the building.

The evidence of Mr Phillips

[248] Mr Phillips testified that he was the maintenance supervisor of the red meat section at the [Killafaddy] abattoir. His duties included repairs and maintenance and installation of new works, including alteration to the houses.

[249] He said that the renovations to House 6 were completed about halfway through 2000. There was an extension added and walls were taken out to make it an open plan office. In relation to wheelchair access a step had to be levelled outside and that was done by bringing the concrete level up. The reason that was changed was because Ray Joy had said "How is George going to get in there?"64

[250] Mr Phiilips said that the toilet facilities were about 1200 wide and would not be suitable for wheelchair access. He said that it was possible to make the two existing toilets into one, or extend into another area. The work would take about two to three weeks, at a cost of five to six thousand dollars.

[251] He had been involved in the installation of the awning outside House 7, which had taken place after Mr Carnie had moved there. The carport had been going to go up there, but after some changes to plans, it was decided to leave the carport and just put up an awning outside House 7. Mr Joy had given him the authority to do that. He agreed that the carport would have given more protection against the rain than the awning did. After the original construction of the awning modifications by way of the addition of perspex were made because the rain was blowing in. That had been the result of a request by Ms Tindall. He had not had to seek approval for that alteration. No further alterations were made to the awning.

[252] He said that he was aware of the Australian Standards prepared by the Australian Council for the Rehabilitation and Disabled in relation to ramp angles and the like. He agreed that he had never looked at the Australian Standard for accessible accommodation for disabled people. It was suggested to him that the standard for ramp gradients should be no more than 1 in 14 and he agreed that the ramp gradient at the front of House 6 was more than 1 in 14. He also agreed that ramp access would be required at the front as well as the back of the house because of considerations such as getting people out in case of a fire.

[253] Mr Phillips was the supervisor of the renovations done to House 6, and he agreed that the plans drawn up for the renovations showed no disabled toilet facility. No suggestions were ever made to him during the construction of House 6 that the plan should be amended to included disabled toilet facilities.

The evidence of Mr Joy

[254] Mr Joy's evidence was that they had tried to align common work groups in a common environment. House 7 was the finance and administration area.

[255] He said that he was not directly involved in the move of Mr Carnie from House 1 to House 7, and that was something the business had being trying to achieve when he was there in 1996 and 1997, and he understood that the company had been trying to achieve it during the period he was not in the business.

[256] He said that after Mr Carnie had moved to House 7 he had not directly expressed any shortage of facilities or requirements to him. Ms Kerry Tindall had spoken to him about concerns regarding George getting wet from the rain as a result of there being no carport at House 7. Mr Joy said that he immediately phoned John Phillips and the awning project commenced.

[257] He said that the reconstruction of House 6 was completed somewhere around May [2000]. The disabled facilities had only consisted of access at the rear of the property, where there were no steps. At the time that Mr Carnie had resigned doorways and access ways had been enlarged to allow wheelchair access and at the front the steps had been replaced with a rather steep ramp. The purpose of those alterations were because, even if Mr Carnie had remained in the position of General Manager Commercial, there was a need [for him] to talk to people such as the sales force team from time to time.

[258] He said that there was no need to make further modifications to House 6 because:

"...there was no need at that time. We did the major reconstruction which was not a great deal of cost to enlarge doorways and make one level albeit the builders got it wrong initially and had a step in the rear of the property where the sales force are, but there was no need to go to great expense in terms of toilet facilities because there were no disabled people currently in that building."65

[259] Mr Carnie had not put anything to him in terms of changes to House 6, when he tendered his resignation. Mr Carnie had not asked about a carport facility or a toilet facility. He had not said to Mr Carnie that those things would not be provided.

Alleged "pattern of a purge"

[260] Mr Carnie's evidence was that before Mr Joy became CEO the senior management group consisted of: the Chief Executive Officer [Mr Munns]; the Operations Manager, Mr Ian Kavanagh; the General Manager Finance and Administration, Mr Peter Johnston; the Sales and Marketing Manager, Mr Mike Pearce; the Human Resources Manager, Mr Michael Flynn; and the Quality Assurance Manager, Mr Ray Chell.

[261] On the hearing date of 5 December 2000, Mr Kavanagh was still an employee of Blue Ribbon; Mr Johnson had gone in January or February of that year; Mr Pearce had gone but was acting as a consulting role; Mr Flynn had gone but was acting in a consulting role; Mr Chell was still there; Mr Munns had gone. There were only two members of the Senior Management Group left as direct employees of Blue Ribbon.

[262] As at the hearing date of 5 February 2001, Mr Carnie's evidence was that Mr Kavanagh had also gone from Blue Ribbon.

[263] Mr Flynn, in his evidence, said that, after the new Board took over there were no immediate changes to the structure of the company, excepting for Mr Peter Johnson's resignation almost immediately.

[264] Mr Flynn said that Mr Munns was the first to go and that he had received a very substantial retirement benefit. Mr Johnson had resigned within a couple of weeks of Mr Joy being there. He had moved to Queensland and was now working there in the business that Mr Munns was involved in.

[265] There were two or three meetings of the senior management group and then it was abandoned.

[266] Mr Joy initiated steps which led to Mr Flynn leaving the company. He had raised it in a number of discussions, Mr Flynn said. It had been announced that Mike Pearce was leaving on a contractual basis. That had not come as a surprise because Mr Pearce's wife had suggested on a social occasion that they should all buy a pub together.

[267] Mr Joy's evidence was that the initial discussions with senior managers in relation to staff had been in his office at Blue Ribbon, which had been a fairly frank discussion about what they wanted to do and where they saw the business going and where they saw their role in it.

[268] One of the first discussions he had was with Mr Peter Johnson who indicated that he wanted to resign. He did not want to stay with the business after the change. He was dissuaded for a month or two, but in the end he left to join Tony Munns in Queensland.

[269] He said that Mr Pearce leaving was a blow, however he and his wife were looking for a lifestyle change. That had been accommodated by him taking an ongoing role with the business, his brief was that of sales consultant.

[270] During cross examination Mr Joy denied that his approach was to remove the old management structure. He agreed that he had previously described that approach as the smartest thing to do, but he said that was for some people, but not for him.

[271] He was asked whether the old senior management group had been disbanded and he said that it was broken into two groups. When asked whether the old senior management group had been replaced, he said that they had been in terms of people who had resigned or left.

[272] He said that Mr Chell was still there. He agreed that: Mr Groenewold had resigned; Mr Kavanagh had resigned; Mr Flynn had gone but was a consultant; Mr Carnie had gone; Mr Johnson had gone; he said that Mr Pearce was still with the company as a consultant. He agreed that of three Executives named at page 22 in the 2000 Annual Report, he was the only one that remained, and that of the consolidated group of those senior executives Mr Carnie and Mr Kavanagh had gone, and Mr Flynn and Mr Pearce were now consultants.

Mr Joy's background

[273] Mr Joy gave detailed and extensive evidence regarding his background prior to his appointment as CEO at Blue Ribbon. He described his involvement in a number of companies and organisations in New Zealand and Australia. Mr Cameron asked him if he had qualifications in any particular area, besides his experience. He said:

"I have qualifications in management, New Zealand Institute of Management and have partial completion of an engineering degree."66

[274] During cross-examination the following exchange took place:

"When did you leave university?.........I never went to university.

I'm sorry, I thought you gave some evidence that you had started an engineering degree?..........The evidence I gave was, I didn't complete an engineering qualification.

Qualification, so it's not a degree at all?............Not a degree at all. It can be used as part of a degree."67

[275] Mr Cameron asked Mr Joy to describe his experience with Blue Ribbon, both when he was there from 1996 to 1998 and today. He was asked to describe his initial involvement in Blue Ribbon and to give an overview of the situation of the company prior to him joining the Board and at the time he joined the Board in 1996. He was also asked whether, at the time the company interviewed him, they had indicated what they wanted him to do whilst on the board of the company. Mr Joy said:

"No, that came out later...The specifics of my role came later once the bank had made their intentions quite clear.

So how long into your directorship did the bank make those intentions clear?...........Probably less than an hour...I was appointed to the board and during that same day I was appointed the banks did make their move on the company and sought to serve papers which would have brought about a receivership..."68

[276] He was asked:

"Were there any indications at the time when you were invited to join the board that those problems were evident or forthcoming?...........No, because I guess one of the unfortunate things about the reporting of public companies in Australia is, that largely the information is historical, very historical, and the level of the loss that Blue Ribbon was suffering because of workers' compensation at that stage wasn't in the public domain."69

[277] During cross examination Mr Joy agreed that he was invited to become a Director of Blue Ribbon on 11 October 1996, and had previously met with members of the Board and management in Tasmania, and that before he became a Director he involved himself a substantial due diligence procedure.

[278] Mr Joy was asked whether a number documents were asked for and made available to him, and he said that he had and they were. He agreed that he also asked for, and was given, details about the current position regarding workers' compensation, including the approval for Blue Ribbon to self insure.

[279] It was suggested to Mr Joy that the problems regarding workers' compensation were in the public domain, with an article in the "Examiner" newspaper, dated 2 July 1996 carrying the headline "Blue Ribbon fights $3 million compo cost".

"You told Mr Cameron, on oath, the level of the loss that Blue Ribbon was suffering because of workers' compensation was not in the public domain?.............Your point?"70

[280] Mr Joy agreed that "clearly"71 the release of the information about the workers' compensation losses would have been made to the Australian Stock Exchange before 14 September 1996 [the date of a further article in the "Examiner" newspaper]

[281] During cross examination in relation to the bank being about to serve papers on Blue Ribbon on the day that he became a Director, Mr Joy agreed that: arrangements had been made with the bank, prior to his becoming a Director, in relation to the continuation of the seasonal overdraft (subject to conditions); the TDR had provided a financial rescue package in July 1996 of a loan of half a million dollars; a similar amount had been provided by Mr Chromy; and that Blue Ribbon had a number of financial facilities all granted by the Commonwealth Bank of Australia, and that those facilities were in place before he became a Director.

[282] Later he was asked:

"Your evidence was that they [the bank] sought to serve papers on the company. Do you agree with me that that evidence does not accurately represent the position?................Yes"72

[283] The evidence that Mr Joy gave, when asked by Mr Cameron whether he had previously, in the companies that he had worked with, been under similar circumstances with companies that were failing was that, in addition to little companies in the Pacific islands, which were always going to have difficulties, he was:

"involved in a company which was largely owned by the Caxton Group which was...one of my longer term employers, that was going through a failure subsequent to the 1987 share market crash so we had to operate through that period.

Was that the only experience you had in turning around a company or were there other business[es]?............Only experience in terms of operating under threat of receivership, yes."73

[284] When cross-examined, he said that he had been managing director of a company called Epicorp and operations director of its parent company, Energy Corp.74 Mr Joy agreed that by February 1988 the two businesses had failed leaving debts of about $70 million New Zealand. A scheme of arrangement had been entered into, in which the creditors had accepted about 4 cents in the dollar.

[285] During his examination-in-chief Mr Joy was asked whether he was a large shareholder [in Blue Ribbon in 1996]. He said:

"At that time I was growing towards becoming the second largest shareholder after Joe. That was completed late in September."75

[286] When cross-examined he said that he could not recall whether he was the second largest shareholder.

"Ahead of you as shareholder in September 1996 was Mr Chromy and related entities............Correct.

MLC?........Correct.

And Koster-Bowmer?.........Yes.

You were the fourth largest shareholder?...........At that time.

At no time were you ever the second largest shareholder at that time?...........I can't recall."76

Mr Carnie's insurance claims

[287] Mr Carnie's evidence was that, as a result of a discussion with Mr Andrew Tomkinson of the ANZ Bank in January of 2001, he became aware of a provision in his superannuation policy for total and permanent disablement.77 It was suggested to him that he make a claim under that policy.

[288] In January of 2001 Mr Carnie met with Mr Richard Bejah who was the AMP representative for Blue Ribbon and he raised with Mr Bejah the possibility of making such a claim.

[289] Mr Carnie sent a letter to the AMP Claims Department, for the attention of Mr Tony Arnold, dated 7 February 2001 in which he set out the circumstances of his resignation and his disability, in the following terms:

"...

I left my employment on August 15, 2000 due to my inability to fulfil my role due to my disability, paraplegia, which was incurred as a result of an operation in July 1993. After a period of recuperation I returned to Blue Ribbon. I was only able to do this as my employer provided en-suite facilities, carport cover, special lifts. These facilities would not ordinarily be provided by an employer. On a subsequent change of office location, they again built special facilities for me. However a change in the control of Blue Ribbon and the restructure of Blue Ribbon management which included a proposed change in my function, meant that I could no longer carry on employment and subsequently resigned.

...

Yours sincerely

George Carnie"78

[290] Mr Carnie completed a claim form dated 1 March 2001.

[291] Mr Carnie also lodged a claim with Australian Casualty and Life.79 This was as a result of Richard Bejah ringing him and informing him that he may be able to make a claim through the group salary continuance scheme effected by Blue Ribbon.

[292] Mr Carnie was asked whether he had discussed, in the course of his resignation, his paraplegia as a reason for resigning, which he categorically denied.

[293] Mr Cameron sought to establish that the responses to questions contained in the claim forms showed that the true reason for Mr Carnie's resignation was his paraplegia. He said that this went to the question of Mr Carnie's credibility.

[294] In particular, the following questions on the forms, and the responses given by Mr Carnie, were the subject of rigorous questioning:

The AMP Claim

"Question 16: Which duties does your injury or illness prevent you doing?...........Any work away from home.

Question 20: Are you completely unable to work?............Yes"

The Australian Casualty and Life Claim

"Question 7: If not self employed, has alternative employment been offered?..........Yes, but not suitable

Question 14: What specific work are you unable to perform?............Any office work without special facilities for the disabled.

Question 30: Can you perform any of your work duties?..........No."

[295] Mr Carnie's explanation of these answers, was, broadly, that that they needed to considered in the context of his covering letter and his personal situation, which is: provided there are suitable facilities he is able to work; in the absence of suitable facilities, he is not able to work. He said that he is able to work at home because there are facilities there. The reason that he had said he was not able to perform any of his work duties was on the basis that he wasn't able to do so without special facilities for the disabled.

[296] His view was that the facilities were initially available to him at Blue Ribbon, but subsequently they were not available to him, or would not be available to him in the new position that was offered. The alternative employment offered to him, referred to in Question 7, was the position of General Manager Sales and Distribution. His view, as expressed during the hearing, was that position was not suitable for him and he was not suitable for it.

"...I'm completely unable to work as a consequence of these changes that were there. My disability occurred in 1993 and I've worked with those that disability from 1993 through to August 2000. So I've demonstrated that with the right facilities the ability to do that work. But with the withdrawal of those facilities then I'm not able to do that work, and as I said, I've pointed that out in this letter - and I haven't tried to hide anything - the reasons why I couldn't do that work."80

Submissions

The Applicant's submissions

Credit of witnesses

[297] Mr Phillips said that it is clear that one person is telling the truth and another person is not. Although a number of witnesses were called in the case, essentially the Commission is left in the position of deciding whether to accept the evidence of Mr Carnie or that of Mr Joy. The evidence of the other witnesses is a useful yardstick to measure the evidence of both witnesses but there were many events and circumstances which occurred behind closed doors.

[298] The Commission should not accept any evidence given by Mr Joy that is either uncorroborated or is not an admission against his interests. Where he makes assertions of fact and has no support for those assertions he should be disregarded.

[299] Mr Joy, in his evidence-in-chief regarding his background, had given evidence which was designed to mislead and was not given truthfully. He had sought to conceal his business failure. His evidence about the bank seeking to serve papers on Blue Ribbon was not honestly given. His evidence about workers' compensation losses not being in the public domain was not honest evidence.

[300] Mr Joy's evidence was, at times, not evidence at all, but argument. An example being his Anzac Day (1998) letter, which was first led in re-examination, on the basis of it being notes made at the time. By the end of re-examination we find that the notes were not notes of any conversation but the draft of a letter, a letter that was never sent. Mr Phillips submitted that the Commission should use those notes in the applicant's favour, because Mr Joy sought to mislead the Commission as to its true nature. He started off saying that these were notes that he made at the time. At the end of it, it's an exculpatory letter. It is a further example of misleading conduct.

Motive

[301] Because of his paraplegia, Mr Carnie would be at the end of any employment queue in Australia. He had every motive for staying where he was and none for going. Mr Joy, however, had a motive for wanting Mr Carnie to go.

[302] Mr Joy was still embittered about what he sees as his removal from the directorship. This arose out of George Carnie's pivotal role. This is apparent from Mr Joy's evidence when he said "It was an insult and still is".

[303] If the evidence of Mr Carnie is substantially true, from day one of the new Board's regime Mr Carnie had every reason to fear Mr Joy. The evidence in relation to the scar tissue, which is found in the evidence of Mr Carnie, Mr Kavanagh and in the cross-examination of Mr Flynn, shows that. The scar tissue meeting was a clear and unequivocal warning to Mr Carnie that he would need to watch his step or be got rid of.

Redundancy

[304] It was clear that Ms Lynette Broomby is not the Commercial Manager, Red Meat. She did not fulfil the functions of Mr Carnie. There is no evidence that Mr Carnie's role has been filled. Lynette Broomby was moved into a shell of Mr Carnie's position.

[305] Mr Phillips referred the Commission to an extract from Macken, McCarey & Sappideen. He said that it is well established that redundancy exists when the duties that go to make up the position held by the applicant are split up and spread between several employees. Mr Joy was effectively eliminating Mr Carnie's position.

Constructive Dismissal

[306] Mr Phillips referred to Mohazab v Dick Smith Electronics81, a decision of the Industrial Relations Court of Australia. The joint judgment of Justices Lee, Moore and Marshall considered what was meant by termination at the initiative of the employer. He referred to pages 204 and 205 of that decision, where their Honours are considering the ILO Convention:

"Consistent with the ordinary meaning of the expression in the Convention, a termination of employment at the initiative of the employer may be treated as a termination in which the action of the employer is the principal contributing factor which leads to the termination of the employment relationship."

[307] Their Honours went on to say:

"In many, if not most, situations the act of the employer that terminates the employment relationship is not only the act that puts in train the process leading to its termination but is, in substance, the entire process."

[308] And, at page 207:

"However industrial tribunals and courts have long accepted that an employee who resigns from his or her employment can and should be treated as having been dismissed by the employer if the dismissal is one where the employee did not resign willingly and, in effect, was forced to do so by the conduct of the employer."

[309] At page 208, their Honours quoted with approval a passage contained in the Auckland Shop Employees Union v Woolworths82 case

" - or where an employer has followed a course of action with the deliberate and dominant purpose of coercing a worker to resign."

[310] A close examination of the facts in this case show that the CEO followed a deliberate and dominant purpose of forcing Mr Carnie to resign.

[311] In the case of Carrigan v Darwin City Council, which concerned an employee who had not been properly rehabilitated where there were rehabilitation policies in place, Mr Justice Von Doussa said at page 5:

"The alternative limb of Ms Carrigan's case is that the Council was in breach of an implied contractual obligation that the employer would not, without reasonable and proper cause, conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between the employer and the employee"

[312] And, at page 6 [he quotes the case of Woods v WM Car Services]:83

"To constitute a breach of this implied term, it is not necessary to show that the employer intended any repudiation of the contract: the Tribunal's function is to look at the employer's conduct as a whole and determine whether it is such that its effect, judged reasonably and sensibly, is such that the employee cannot be expected to put up with it. The conduct of the parties has to be looked at as a whole and its cumulative impact assessed."

[313] The Commission should look at Mr Joy's conduct as a whole, cumulatively and starting from day one, and determine whether, judged reasonably and sensibly, Mr Carnie could not be expected to put up with it.

[314] In Martin Jackson & Anor v Monadelphous Engineering Associates Pty Ltd (970281) Justice Moore, at page 41 quoted:

"I leave open the question of whether a termination of employment at the initiative of the employer requires the employer to intend by its action that the employment will conclude. I am prepared to assume, for the present purposes, that there can be a termination at the initiative of the employer if the cessation of the employment relationship is the probable result of the employer's conduct."

[315] Justice Moore goes on to say:

"I was then unaware of a line of authority in the federal courts of the United States of America that concern actionable constructive discharge. Constructive discharge can be established by demonstrating that the employer deliberately made the employee's working conditions so intolerable that the employee was forced into an involuntary resignation and the employee acted reasonably. However it would not be necessary to demonstrate that the intolerable working conditions were imposed for the purpose of forcing the employee to resign."

[316] And:

"Drawing on another area of the law, whether the conduct of Monadelphous caused the termination of Jackson's employment involves a practical commonsense concept"

[317] There was an implied contract that Blue Ribbon would not, without reasonable and proper cause, conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between itself and Mr Carnie.

[318] If Blue Ribbon had made Mr Carnie's working conditions so intolerable that he was forced into involuntary resignation, it has constructively dismissed him, whether or not that was the result intended.

[319] The Commission, when determining this should look at the events in a practical and commonsense way and make a judgement about the cumulative effect in that practical and commonsense way.

[320] Mr Joy, for motives of his own, was engaged in stripping away Mr Carnie's functions, as seemed to be the case to Mr Kavanagh. Mr Kavanagh's evidence and Mr Carnie's evidence in relation to the removal from major contracts, the red meat administration and meetings with outside interests should not be taken in isolation, but should be regarded as part of the cumulative process.

[321] The behaviour of Mr Joy in relation to the red meat meeting and the famous psychic conversation was a form of bullying and was further evidence of an intense dislike of Mr Carnie. It is evidence of conduct calculated or likely to destroy the relationship of confidence and trust between the applicant and his employer.

[322] A gauge for the intolerable conditions is what happened to the senior management team, and it is clear that there were many people who found Mr Joy intolerable.

General Manager Sales and Distribution

[323] The position of General Manager Sales and Distribution had clearly got to the stage of being effectively an offer. It was not part of the structure of the organisation. No person has ever been put in that role. No-one has been head-hunted into that role. It has never been advertised. The discussion was about an empty position which has never been filled. The applicant and the Human Resources Manager said effectively that it was a position which Mr Carnie could not do.

Resignation

[324] Mr Joy's comment in relation to Mr Carnie's resignation, where he had said "I'm not surprised, I expected it" and his explanation, which was that he was not surprised because of being called to a meeting at short notice, is just nonsense. There might have been a myriad of reasons why Mr Carnie called him to a meeting at short notice.

Remedy

[325] Although the applicant seeks reinstatement, it is obviously not what Mr Joy would tolerate. It is clear that the relationship is so strained that reinstatement would be completely inappropriate, but the applicant should be in no worse position than if he was to be reinstated, whether it be by way of a redundancy or by way of monetary compensation. The factors in this case point to a substantial payment, having regard to Mr Carnie's circumstances, his length of service, and the salary and benefits that he enjoyed. Had he been fairly treated there is no reason why his employment would have been terminated by an act on his part.

The Respondent's Submissions

[326] Mr Cameron submitted that this case was not a trial of Mr Ray Joy, rather, it was a plot by Mr Carnie who was out to create a constructive dismissal, deliberately putting in place circumstances that would support a subsequent claim. The evidence was that he had spoken to Mr Terry Edwards, an experienced industrial advocate, and to Mr Michael Daly [a legal practitioner] prior to Mr Joy coming on board as CEO.

[327] The evidence suggests that at the time of the changeover from the old Board Mr Carnie did nothing to question or to inquire about his position. He let purported problems accumulate, on the basis that at the end of the day he could put together a case to bring before the Commission to claim constructive dismissal.

[328] If there is no termination at the initiative of the employer the Commission is without jurisdiction. The resignation of Mr Carnie was of his own volition; it was a willing resignation; there were alternatives to the resignation and therefore no matter what the employer may have done there was no constructive dismissal.

[329] The cases say that the action of the employer must be the principal contributing factor which leads to the termination of the employment relationship, that is, had the employer not taken the action it did, the employee would have remained in the employment relationship. If the employee had an alternative to resignation, then there will be no termination at the initiative of the employer.

[330] In his application to the Commission, Mr Carnie referred to the famous scar tissue meeting, which, he implied, was a demonstration by Mr Joy that he was out to get Mr Carnie. Mr Joy, as the new CEO, said that they were going to move on from that. There was no particular venom in this statement. It was an acknowledgment by Mr Joy that there were problems with Mr Carnie in the past, but they were willing to move on.

[331] In his application he refers to the announcement of a new manager to handle livestock agistment, without prior consultation. Mr Carnie admitted that he attended a meeting where the incumbent manager's departure and a replacement was discussed.

[332] The next aspect of the application was direct dialogue with Mr Carnie's subordinates without reference to him. Mr Joy is the CEO of the company. The implication that Mr Joy has to approach Mr Carnie before he talks to any of the subordinates that report to Mr Carnie is a nonsense.

[333] Regarding exclusions from meetings in October 1999, the evidence was that Mr Carnie had at various times attended meetings of the Tasmanian Farmers and Graziers Association, and at other times, he had not. There was no direct evidence as to particular meetings that he was excluded from.

[334] Reference was made to the Livestock Advisory Board and the appointment of Paul Greaves to that position. The evidence of Mr Blight and Mr Joy was that the Livestock Advisory Board, although an idea, never existed.

[335] The application said that as a consequence of Mr Joy's attempts to squeeze Mr Carnie out he suffered extreme stress. Nowhere was anything indicated by Mr Carnie in support of that, nor to say that he took any action in relation to the stress.

[336] The application refers to the appointment of a person to the pig procurement program without prior reference. The evidence of Mr Joy is that this wasn't the case and the evidence of Mr Carnie's witness, Mr Kavanagh, was that Mr Carnie was doing pig procurement up until his departure from the company.

[337] In his application Mr Carnie talks about the removal of the contract negotiations. The evidence was that the consultants in relation to the Amcor contract had been brought in to look at various aspects of the company, prior to Mr Joy returning as CEO.

Alleged diminution of responsibilities and duties

[338] To say that there was a diminution of Mr Carnie's responsibilities is questionable because at the time of Mr Joy becoming CEO Mr Carnie was working 50 to 60 hours per week. The week prior to his leaving he was working 50 to 60 hours a week. The duties that he did on a day to day basis he was still doing at the time he resigned from the company.

[339] The evidence of Mr Blight and Mr Joy and even Mr Kavanagh was that the proposed changes to the business unit structure were publicised well in advance. There was no intention to target Mr Carnie. It was part of an overall restructuring of the business that was advertised well in advance by the Board and the CEO.

[340] Ms Tindall said that there had been a small dwindling of Mr Carnie's position. Mr Kavanagh's view was that Mr Carnie's level in the business had been diminished. Mr Carnie said himself that he wasn't receiving the recognition of the company. What this application probably comes down to is that Mr Carnie had gone from being seen as the 2IC answerable only to Mr Munns, to a lower position.

Physical facilities

[341] The situation regarding House 7 was that there was a move on from 1998 when the major alterations to the building were carried out; the carport pads were installed prior to Mr Joy coming. Mr Carnie never made approaches to Mr Joy about problems with the facilities. Ms Tindall did, and the evidence is that once she asked for things they were provided.

[342] In relation to House 6, the general renovations were done early in 2000, prior to any discussions with Mr Carnie regarding the position of General Manager Sales and Distribution. Mr Joy, when inspecting the renovations had indicated that there was a problem with a step and it was rectified. It is true that there is no toilet in House 6 that would be suitable for Mr Carnie, but, as Mr Joy said, if that needed to be done it would be done. That was Mr Young's evidence as well. To claim that because there is not a facility there at the time is to mislead the Commission in an attempt to show that Mr Joy was out to get Mr Carnie.

General Manager Sales and Distribution

[343] There were discussions [about the position]. Mr Joy said to Mr Carnie, I think you have the skills to do this. The only time that Mr Carnie said no, I don't have the skill set for that, was at the meeting at which he resigned. The only question he asked was what was the salary, and he was told that there would be no reduction in his salary. There was no job description. Mr Carnie based his decision on what he understood the job description to be. He didn't ask for clarification.

[344] The evidence was that Mr Carnie could get around when necessary. Six months before Mr Joy became CEO Mr Carnie went to Blundstones. During the fortnight of his notice period he travelled to Hobart to speak with Woolworths, he also went to Sydney and to Melbourne for the company, yet he is saying that he wouldn't be able to do the travelling. He never asked what travelling would be involved. To say that he could not physically do the job is not correct.

[345] Mr Carnie said that the position would involve him going to the distribution centre and that this would have to be at night, yet in cross-examination he acknowledged that there were supervisors and managers that might do that for him. Even if he did need to do that, he had previously worked at night for the company.

The meeting of 30 June 2000

[346] If Mr Carnie was not expected to be at this meeting, then why did he ring so many people to apologise for non-attendance? He rang Mr Joy's mobile phone, he rang Mr Kavanagh to tender the apology and he rang Wendy Brown, Mr Joy's personal assistant.

[347] Mr Joy acknowledged that he was angry. Most managers would at some stage get angry with their subordinates. That is human nature and the nature of business. The evidence is questionable, and even if not questionable, even if Mr Joy was angry, so what? That doesn't mean that it's another cog in the wheel to get rid of George Carnie.

Mitigation

[348] There is an obligation on an employee claiming unfair dismissal to mitigate their loss. The applicant has failed to do so, this revolves around the offer of a consultancy made to Mr Carnie both by Mr Joy and Mr Flynn.

[349] The evidence was that a consultancy of around $500 to $600 per day was suggested. At 2.5 days per week this would be $70,000 to $80,000 per annum, with Mr Carnie working from home, where all facilities would be available to him, including the computer that had been provided by the company.

Credibility of witnesses

[350] Much was made of the credibility of Mr Joy's evidence. In relation to Mr Carnie's evidence: with the Aurora contract, it transpired that there was no such contract; regarding his brother's illness, he said he'd been late one day because he'd been with his brother, under further probing he admitted that he had the whole day off. Another example is the work that Mr Carnie's son did for Blue Ribbon in developing software as part of his university degree. His evidence was that his son wasn't paid for that, but the evidence of Mr Flynn was that he was on a quite a substantial salary during employment with Blue Ribbon.

[351] In Mr Carnie's letter dated 7 February 2000 to the AMP Claims Department84 he said that he left his employment due to his inability to fulfil his role due to his disability, paraplegia, which was incurred as the result of surgery in 1993. Mr Joy's evidence was that in the conversation with Mr Carnie on the day that he resigned, they discussed what he was going to do and Mr Joy said that there was reference to his paraplegia and the restrictions that put on him.

[352] Mr Carnie said that his comments in the insurance claim forms have to be read in their entirety and in conjunction with his covering letter. It is unlikely that ACL would have a copy of the covering letter sent to AMP.

[353] The reasons that he gave in his letter of resignation are not the same as the reasons given in the insurance claim forms and do not support his claim before the Commission.

[354] The documents are relevant because they go to show the real reasons behind Mr Carnie's leaving: not a constructive dismissal, not a redundancy but problems with Mr Carnie working. At the time he resigned the facilities were there for him. He was located in House 7 and his own evidence was that the facilities there were adequate.

Authorities

[355] Mr Cameron referred the Commission to the following authorities:

[356] In the matter of Milne v Metro Investment Holdings85 Cribb C quoted from the decision of Western Excavating (EEC) Ltd v Sharp (1978) ICR 221. That decision is now the main authority regarding the principles to be applied in the case of constructive dismissal. This is endorsed in Librizzi v Flower Power86 in the Federal Court of Australia in July 2000. In Western Excavating Lord Denning said:

"But the conduct must in either case be sufficiently serious to entitle him to leave at once. Moreover, he must make up his mind soon after the conduct of which he complains: for, if he continues for any length of time without leaving, he will lose his right to treat himself as discharged. He will be regarded as having elected to affirm the contract."

[357] Mr Carnie is saying that over a period of time things happened, and yet he has not highlighted one particular point that came to be the repudiation of the contract on which he relied to tender his resignation.

[358] At page 10 of Milne, Cribb C summarises the principles [from a number of authorities - Western Excavating, Russian v Woolworths, Robins V Franklin, and Mohazab87 relating to constructive dismissal.

"It is possible to distil the following principles...:

*was there a significant breach going to the root of the contract of employment by the employer or did the employer show that he intended to no longer be bound by one or more of the essential terms of the contract (repudiation contract) (Western Excavating

case)

*was there conduct by the employer which was likely to destroy or seriously damage the relationship of trust between the employer and the employee (Russian v Woolworths case)

*did the employer construct circumstances which forced the employee to resign (Russian v Woolworths case)

*did the applicant have a choice (Robins v Franklins Limited and Mohazab v Dick Smith Electronics cases)

*was it a case where the employee' situation became unpalatable and he or she resigned (Robins v Franklins Limited)

[359] In the respondent's submission there was no repudiation of the contract, because a minor changing around of a person's duties and responsibilities does not go to the essential term of the contract.

[360] There was no conduct or intention by the employer in its restructuring which was likely to destroy or seriously damage the relationship of trust between employer and employee.

[361] There were no circumstances constructed by the employer which forced the applicant to resign. Until the last minute of the last week Mr Carnie was dealing with the essential duties of his position. He was offered another position at the same salary.

[362] It may have been the case that the employee's situation became unpalatable and he resigned. Maybe it was different to how he was used to operating during the 17 years with Mr Munns and Mr Chromy in control. That does not give him reason to resign.

[363] A recent decision of the Full Bench of the Federal Court Pawel v The Australian Industrial Relations Commission88 called into question the principles enunciated in Mohazab. Dowsett J said in his decision that he doubted the efficacy of the `causal connection' test as well as the `but for' test. He said that an employee makes a decision to resign after taking many considerations into account, including dissatisfaction which may have been caused in part or in whole by a decision or decisions of the employer. Therefore, almost any employee who, for whatever reason, resigns could argue that `but for' the actions of the employer he or she would not have resigned. Dowsett J held that unless an employer holds a gun to the head of an employee it was difficult to imagine a situation where an employee may be compelled to resign.

[364] Did the applicant have a choice? There were many alternatives open to Mr Carnie. He did nothing to avoid the things that were building up. He did not question anything with the CEO. He did not talk to the Human Resources Manager. He did talk to a psychologist but there is no evidence as to what was discussed or what advice he sought. He did not say to Mr Joy that he did not want the position of General Manager Sales and Distribution and that he wanted to remain in the position of General Manager Commercial. What he did was talk to Mr Edwards, a senior industrial adviser, and Mr Michael Daly, a solicitor, to put in place the whole proposal of a constructive dismissal.

[365] In the case of Carrigan v Darwin City Council the employee did lots of things to indicate to her employer that she was not happy with what was happening to her.

[366] In Jackson v Monadelphous the employee had his hours reduced, his workplace was moved, he was provided with menial work, he wasn't provided with work on certain days and was not guaranteed any future work. He took actions to show that he wasn't happy with what was happening. Mr Carnie did not do that. All he did was, prior to Mr Joy coming back, talk to Mr Daly and Mr Edwards, and he admitted that prior to tendering his resignation he talked to Mr Edwards and Mr Daly again.

[367] The case of Sparrow v Little (t/as Milk Plus)89 Australian Industrial Law Reports supports the decision of Western Excavating. It was reported that the decision was that:

"In order for a finding of constructive dismissal to be made, changes to the employment contract must have reached the point of an accomplished fact rather than a mere proposal."

[368] Hampton DP is quoted:

"...[the commission] must as precondition be satisfied that the actual changes to the employment contract had reached the point of an accomplished fact and not something that was merely mooted or proposed."

[369] The Commission is reported as [finding that] :

"her actions were premature and it was not possible to find that the respondent had acted in a manner that could provide the basis for the resignation to be treated as a dismissal at the initiative of the employer".

[370] Mr Cameron submitted that the principles in this case have application to both the claim for redundancy and the claim for constructive dismissal. There was a proposed position that was being discussed, the duties had not been delineated.

[371] In the decision of this Commission in Gateway90 the employee was told her position would become redundant [at a future date], she then resigned. The Commission said that because she'd been told the position was going to become redundant she was still entitled to redundancy pay. There had been no discussion at all in relation to the position of Mr Carnie becoming redundant.

[372] The principles involved in redundancy are that the employer is to avoid the redundancy and if there are suitable alternative positions to offer those positions. Firstly, if there was going to be a redundancy it had not happened yet, secondly, the company was discussing a suitable alternative position for Mr Carnie. He said he didn't have the skill sets for it, but there has been no proof as to why. The main point in Gateway was the manager told the employee she didn't have the skills for the position. There has been no indication that the company did not think Mr Carnie had the skills to perform another job.

[373] In Oram v OPSM Pty Ltd - T8242, King DP said that there were alternatives; that a protest should have been lodged; that it should be brought to the employers attention if [the employee] is not happy with what is going on. That is the situation that should have applied. Mr Carnie did nothing. There was an effluxion of time between things building up and his resignation.

[374] The principles in these cases and even in the authorities put forward by the applicant do not support Mr Carnie's claim for constructive dismissal. The Commission does not have jurisdiction to hear this matter. There has not been a redundancy The job Mr Carnie resigned from is still there. The duties are still there, done by a number of different people.

FINDINGS

[375] I find the following issues irrelevant to the questions to be determined, and have not taken them into account when reaching my decision:

  • Mr Joy's corporate history, excepting those parts of his evidence which go to the credibility of his evidence before the Commission.

  • The dinner attended by Mr Carnie and Mr Joy at Pierre's Restaurant, because it predates the events in April 1998.

  • The performance reviews and salary increases of Mr Carnie, because these are part of the normal operations of the company, and, because it was never claimed at any stage of the hearing that Mr Carnie was not a competent employee.

  • Mr Carnie's previous involvement in human resources management, because it predates relevant events by a considerable period.

  • Mr Carnie's treatment in hospital in 2000.

  • Ms Tindall's workers' compensation claim

[376] I have considered the contention of the applicant that the termination of Mr Carnie's employment was part of a "pattern of a purge". In the absence of detailed evidence in relation to the reasons for the termination of employment of each of the individuals cited, I make no findings in this respect.

The Questions to be Decided

  • The credit of witnesses

  • Was the termination of employment at the initiative of the employer?

[377] In determining whether or not there was a constructive dismissal in this case, the following issues need to be considered:

  • The question of motive

  • The effect and extent of the alleged transfer of functions

  • The physical facilities

  • The resignation

  • The genuineness of the alternative position

[378] Also to be determined, in the context of the question of a constructive dismissal is the contention of the respondent that the application is the result of a "plot" by the applicant designed to result in the payment of compensation for constructive dismissal.

The Question of the Credit of Witnesses

[379] During the hearing the question of the credit of witnesses emerged as a major issue. The credit of three witnesses was brought into question: Mr Carnie, Mr Joy and Mr Kimpton. I found Mr Kimpton to be an unsatisfactory witness whose evidence was inconsistent and evasive, and I prefer the evidence of other witnesses where there is any conflict.

[380] The evidence of Mr Carnie and Mr Joy is critical to the determination of this case and it differs in many important respects.

The credibility of Mr Carnie's evidence

[381] I found Mr Carnie to be a thoughtful and credible witness. His evidence was supported by other witnesses in many substantial respects, in particular by Mr Flynn's evidence. Mr Flynn was a witness for the respondent. The notes that he agreed he provided to Mr Carnie were a record which supported many aspects of Mr Carnie's evidence in relation to his dealings with Mr Joy and his beliefs in relation to the future of his employment with Blue Ribbon.

[382] Mr Cameron raised four aspects of Mr Carnie's evidence in respect of his credibility.

[383] One was in relation to the Aurora contract. This evidence was in the context of cross-examination regarding major contracts responsibility, which Mr Carnie had alleged were being removed from him. There were a number of contracts referred to, for example, the Amcor contracts. Mr Carnie was asked, during cross examination, whether there were any other contracts. He identified the Aurora contract and went on to say that it wasn't due for renewal and that he continued to have responsibility. He agreed with Mr Cameron that he had not lost that responsibility because it didn't exist. Mr Carnie goes on to say: "Sorry, you asked me if there were other contracts and I misunderstood the question."91 I have concluded that Mr Carnie did not intend to mislead the Commission. In fact his evidence was quite clear. He was not claiming to have lost responsibility for that contract.

[384] The second aspect of Mr Carnie's evidence mentioned by Mr Cameron is evidence in relation to his brother's illness. Mr Cameron said that Mr Carnie said he had been late to work one day because he'd been with his brother; but with further probing he admitted that he had the whole day off.

[385] The evidence that Mr Carnie gave during cross examination was that in May [2000] he was late for work on one occasion. He went on to say that he stayed with his brother on that particular day. At the next day's hearing he volunteered the information that the absence may have been for a whole day. He was asked whether that was the only absence he had from work in the previous six months. He responded: "I think I may not have gone in for the day. Yes, I may not have gone in for the day."92

[386] In my view, Mr Carnie volunteered this information in order to ensure that his evidence was accurate. It was not information that was reluctantly given, or elicited as a result of probing questions. This example supports rather than detracts from Mr Carnie's credibility as a witness.

[387] The third aspect of Mr Carnie's evidence which was raised by Mr Cameron was in relation to work performed for Blue Ribbon by Mr Carnie's son and remuneration received for it. Mr Cameron said that the implication of Mr Carnie's evidence was that his son was not reimbursed for his work [in the development of software], but, he said, the evidence of Mr Flynn was that he was in fact on a substantial salary during his employment with Blue Ribbon.

[388] The question, during examination in chief, was in relation to software that Mr Carnie had developed for Blue Ribbon, and which remains with Blue Ribbon. He was asked whether, apart from his salary, he received any financial reward for this. He said, no. He said that his son, during his high school and university days had developed some software, but wasn't paid for it. Later he was rewarded for some additional work which was more like pocket money.

[389] When cross-examined, he repeated that his son received "pocket money" for work done at high school, that he had done work as part of his university degree, for which he could not recall whether there was payment or not; but, when he was an employee of Blue Ribbon, he was paid for working there. He said that there were two different periods. Mr Flynn's evidence was that Mr Carnie's son was a full time employee at Blue Ribbon from March 1995 until March 1998 at a final salary of $35,000.

[390] Clearly there are two different work periods here, one, whilst Mr Carnie's son was a student developing software; the second, when he was a full time employee. Reading the evidence as a whole, there is no inconsistency or wrong inference that could be drawn from it.

[391] The fourth aspect raised by Mr Cameron was the evidence regarding Mr Carnie's insurance claims, which is set out elsewhere in this decision.

[392] I accept Mr Carnie's explanation of the responses contained within his insurance claim forms. I have concluded that the answers he gave to those questions are consistent with his evidence and with his perception of the situation at Blue Ribbon at the time of his resignation. They also need to be considered in the context of the eligibility criteria for the claims, the shorthand nature of the questions and answers, his explanations of the answers, and the covering letter to AMP. I do not believe that individual answers to those questions should be considered in isolation. Having considered all of these aspects, I have concluded that his responses in the claim forms do no damage to his credibility as a witness before this Commission.

The credibility of Mr Joy's evidence

[393] After a careful analysis of the evidence, and a consideration of Mr Joy's demeanour during the hearing, I have concluded that Mr Joy is an unreliable witness. Where Mr Joy's evidence differs from that of Mr Carnie, or, indeed, of any other witness, I prefer that other evidence.

[394] My reasons for doing so include the following: there were examples of Mr Joy being equivocal and evasive when answering questions; there were examples of contradictions and inconsistencies on a whole range of issues, some of which were not significant issues, but in the overall context they support my conclusion about the unreliability of Mr Joy's evidence; there were occasions when Mr Joy recast his evidence during cross-examination; there was at least one occasion when he admitted that his evidence in chief did not accurately represent the position.

[395] I give the following as examples:

[396] Mr Joy's evidence in relation to his shareholding in Blue Ribbon in 1996 is an example of a number of instances during his testimony when he would say one thing and then later in his evidence change or become equivocal about it. Initially he said he became the second largest shareholder in Blue Ribbon in September of that year, later he said he couldn't recall whether he was, whilst at the same time agreeing that there were three other shareholders with shares in excess of his.

[397] His evidence regarding his knowledge of problems with the company in 1996 was plainly untrue. When asked if [at the time he was invited to join the board] any of the problems were evident, he said "No". Later it became clear that Mr Joy had extensive and detailed knowledge of the company, and of its problems, as a result of the due diligence exercise conducted before he became a director. It is also clear that the situation in relation to Blue Ribbon and workers' compensation was in the public domain, despite the fact that his initial evidence was that it wasn't. Again, this is information that Mr Joy clearly had before he became director.

[398] It is also apparent that Mr Joy's claim that, on the day he became a director, the bank had been about to serve papers on the company, did not accurately represent the position, as he admitted during cross examination.

[399] An example of inconsistencies within Mr Joy's evidence is the situation in relation to the offer made to Mr Carnie of the position of General Manager Sales and Distribution. During his examination in chief, in relation to Mr Carnie's letter of resignation [in which Mr Carnie had referred to the offer of the position of General Manager Sales and Distribution], Mr Joy said:

"This is clearly a fabrication. We talked about - there was never an offer because an offer implies that there is a defined position and position description..."93

[400] During cross examination Mr Joy agreed that he did in fact offer Mr Carnie the position:

"...you did in fact offer him the position of general manager, sales and distribution.............We did"94

[401] There was a great deal of evidence in relation to Mr Joy's background and corporate history. This evidence was not strictly relevant to the case, but was introduced during his examination in chief, presumably to show that he was a witness of substance and standing. Once introduced that evidence was then open to cross-examination. A close reading of all of this evidence reveals a number of inconsistencies, a tendency to inflate his role in relation to some of that history, and a tendency to gloss over other events.

Was the termination at the initiative of the employer?

[402] If the termination of employment was not at the initiative of the employer then the Commission does not have jurisdiction to hear and determine the matter.

[403] There is no dispute that Mr Carnie resigned from his position on 1 August 2000, confirmed in writing, giving two weeks' notice. The question is, whether it was the actions of the employer which were the principal contributing factors leading to the termination of the employment relationship.

[404] I accept Mohazab v Dick Smith Electronics as authority for what is meant by termination at the initiative of the employer. At page 205 their Honours said:

"...plainly, an important feature [in termination at the initiative of the employer] is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee."

[405] I also accept that an employee who resigns from his or her employment can and should be treated as having been dismissed from his or her employment if the resignation was as a result of the conduct of the employer, provided that the action of the employer is the principal contributing factor which leads to the termination of the employment relationship.

[406] Mr Cameron said that a recent decision of the Full Bench of the Federal Court Pawel v Australian Industrial Relations Commission called into question the principles enunciated in Mohazab, and that Dowsett J found it difficult to conceive of a situation where an employee could be forced to resign, apart from when a gun was held to the head. However, what Mr Cameron neglected to say was that Justice Dowsett's was a minority view and that Branson and Marshall JJ applied and followed Mohazab. In their decision Justices Branson and Marshall JJ make reference to the fact that Mohazab was referred to with apparent approval by McHugh J in a decision of the High Court of Australia Qantas Airways v Christie.95

[407] I accept the applicant's submissions that, as enunciated by Von Doussa J, in Carrigan v Darwin City Council, the employer's conduct should be looked at as a whole and its effect judged reasonably and sensibly, and that the conduct of the parties has to be looked at as a whole and its cumulative impact assessed.

[408] I have read and considered all of the authorities introduced by the parties, and have taken account of the principles summarised by Cribb C in Milne v Metro Investment Holdings.

[409] In Mohazab, their Honours quote from Auckland Shop Employees Union v Woolworths (NZ) Ltd, where Cooke J held that "unjustifiable dismissal" included cases where:

"an employer has followed a course of conduct with the deliberate and dominant purpose of coercing a worker to resign."

[410] If that is so in this case, why would the employer have deliberately have acted in such a way as to coerce Mr Carnie into resigning? Is this probable? The applicant alleges that Mr Joy had a motive for desiring the resignation of Mr Carnie, and that motive was related to the events of April 1998, when Mr Carnie's actions in reporting comments allegedly made by Mr Joy set in train a series of events which led, firstly, to Mr Joy's resignation from the Board of Blue Ribbon, and, secondly, prevented him becoming a member of the Board in 1999.

[411] The applicant contended that Mr Joy was embittered by this, and that the comments made by him at the meeting where scar tissue was mentioned were a clear indication to Mr Carnie that Mr Joy had neither forgotten nor forgiven.

[412] I think it clear from the evidence that Mr Joy was, from the time he returned to the company in 1998, hostile toward Mr Carnie. The following are some of my reasons for forming this view:

[413] From the evidence it is clear that it was the actions of Mr Carnie in April 1998 in reporting Mr Joy's alleged comments to Mr Munns that led to Mr Joy's departure from the Board in 1998 and which prevented him from becoming a Director in 1999. Mr Joy's evidence throughout the hearing was that Mr Carnie had lied about the events of 1996. When he was asked if it had been an insult to be asked to withdraw as a director of a company he said: "It is and still is".96

[414] Despite Mr Joy's assertion that the scar tissue comment was not directed toward Mr Carnie, the evidence of Mr Carnie was that it was, and the evidence of Mr Flynn was that he believed that Mr Joy looked at Mr Carnie and there was some acknowledgment. In my opinion, this comment was sending a clear message to Mr Carnie that past events had not been forgotten.

[415] At times during the hearing Mr Joy's demeanour, language and comments revealed his hostile attitude toward Mr Carnie; for example, when he referred to him as "this person"97 and when he described his perception of Mr Carnie's standing in the company - when asked whether Mr Carnie was effectively second in command at the time the new Board took over, he said "it may have been his view and that it may have been the view of others, but, he said, "not in my view".98.

[416] I think it likely that Mr Joy would have preferred Mr Carnie not to be there. I think it probable that Mr Joy had a motive for pursuing a course of action designed to result in Mr Carnie's resignation. I think it possible that Mr Joy did deliberately embark upon a course of action intended to bring about the resignation of Mr Carnie. However, I make no firm findings in this respect. For a constructive dismissal case to succeed, it is not necessary to show that the employer intended any repudiation of the contract to be the result; it is sufficient to show that the actions were such as to have that result.

[417] In Carrigan, one of the limbs of the case was that there is an implied contractual obligation that an employer would not conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between an employee and an employer. The case of Woods v WM Car Services99 is quoted:

"...it is not necessary to show that the employer intended any repudiation of the contract."

only to show that the conduct, judged as whole, sensibly and reasonably, is such that the employee cannot be expected to put up with it.

[418] It is not, however, a one-way street. I accept Mr Cameron's submissions that I should consider the conduct of both parties, and consider Mr Carnie's role in the events which preceded the resignation.

[419] Mr Cameron contended that Mr Carnie's resignation was part of a plot, designed to obtain for himself a financial windfall in that he deliberately set out to create a constructive dismissal, putting in place circumstances which would support a subsequent claim.

[420] In support of this he cited Mr Carnie's discussions with Mr Terry Edwards, an industrial adviser, and Mr Daly, a solicitor. He also submitted that Mr Carnie had done nothing to prevent what was happening to him, that he just let things take their course.

[421] In my view, the evidence does not support the respondent's contentions. Mr Carnie's evidence was that he had first spoken to Mr Edwards in August of 1999 when it was made known to him that Agribusiness Partners included Ray Joy, and that it was just a general discussion. After the incident on 30 June 2000, [the red meat management group meeting and "fucking psychic" comment], he spoke to Terry Edwards and Michael Daly. He said: "my view was that my days were certainly numbered". He said that the "real discussion" did not take place until July when the position of General Manager Sales and Distribution had been put to him. He spoke to Mr Edwards again when the "secretary's lunch" incident occurred. This incident was on 26 July 2000.

[422] When cross-examined Mr Carnie was asked when he first spoke to Mr Daly, he replied "in July 1999", and said that the advice he sought from him was about the changes to his role. Clearly, this discussion could not have taken place in July 1999, because in July 1999 nothing had happened. Mr Carnie' earlier evidence was that it was made known to him in August 1999 that Agribusiness included Ray Joy. I have no doubt, based on the evidence, that the first discussion with Mr Daly must have taken place in July 2000, not, as Mr Carnie mistakenly said, July 1999.

[423] The evidence shows that there was a general discussion with Mr Edwards in August 1999, then further discussions with Mr Edwards and Mr Daly, no earlier than the last day in June 2000 or at some time in July 2000. This is, at most, four weeks before the resignation. He spoke to Mr Edwards again after 26 July 2000, less than a week before his resignation. His evidence, also, was that when he had the first "real" discussion with Mr Edwards (July 2000) was when he felt that his "days were numbered".

[424] In Mr Cameron's submissions, Mr Carnie spoke to Mr Edwards and Mr Daly prior to Mr Joy coming on Board as CEO, and, by implication, this was part of the "plot" alleged by the respondent, to create a constructive dismissal case. For the reasons given above, the evidence shows that the discussions with Mr Daly did not take place until July 2000, some nine months or so after Mr Joy became CEO.

[425] The evidence does not support the scenario implied by the respondent in which Mr Carnie was being advised from behind the scenes by a solicitor and an industrial adviser over a considerable period of time as part of setting in place circumstances in order to make a constructive dismissal claim. Even if the advice received from his legal and industrial advisers in July 2000, very shortly before his resignation, was that he had a case for constructive dismissal, that does not mean that he put those circumstances in place himself.

[426] The second argument in support of the "plot" was that Mr Carnie did nothing; he let problems accumulate, never querying them, so that he could put together a case for constructive dismissal. This is not supported by the evidence. As shown above, he sought advice before his resignation from a solicitor and an industrial adviser. He also consulted a psychologist, Rob Davis, who was available to employees of Blue Ribbon, about his problems with Mr Joy.

[427] A close reading of the evidence shows that on several occasions Mr Carnie did query the things that were happening and had expressed his concerns. His evidence was that he had discussed his difficulties with Mr Joy: for example, he did so in relation to the proposed removal of the manager from the "Barnbougle" agistment; the notes taken by Mr Flynn100 show that he had raised a number of issues with Mr Joy when the changes in functions had been discussed "a few weeks back", ie, before the resignation; on 10 July he had met with Mr Joy and discussed the situation in relation to the red meat meeting of 30 June; he had said to Mr Joy that he would be "a square peg in a round hole"101 in the position of General Manager Sales and Commercial, and he had done this prior to his resignation.

[428] A number of changes were a fait accompli before he got to know about them, for example: the appointment of the pig procurement officer; Mr Armstrong's dealings with Amcor; and the announcement in relation to the transfer of red meat administration to Mr Kavanagh. He could do nothing to prevent them happening because he had no knowledge of them until after the event.

[429] The respondent's claim that Mr Carnie deliberately put in place circumstances, and allowed problems to accumulate, doing nothing to question them, cannot, on the evidence, be sustained and I reject that aspect of the respondent's submissions.

[430] Mr Cameron said that the main authority regarding the principles to be applied in constructive dismissal are to be found in Western Excavating (EEC) Ltd v Sharp, in which Lord Denning said, in effect, that the conduct of the employer must be sufficiently serious to entitle the employee to leave at once, and that the employee must not continue for any length of time without leaving, or, by doing so, he will lose his right to treat himself as discharged and will be regarded as having elected to affirm the contract. Mr Cameron said that things happened over a period of time but that Mr Carnie had not highlighted one particular point on which he relied to tender his resignation.

[431] Having considered all of the evidence, I have concluded that the actions of the employer were the principal contributing factor leading to Mr Carnie's resignation. If viewed cumulatively, as urged by Mr Phillips, then the combined weight of all of the events was such as to meet most, if not all, of the tests in the various authorities, including the "high" test in Western Excavating.

[432] In my opinion, it is possible through the evidence to identify the particular point in time which led to Mr Carnie tendering his resignation. This was during July 2000. He tendered his resignation shortly afterwards, on 1 August 2000. The events of mid to late July, whether considered in isolation or in conjunction with all that had gone before, were of such significance as to sufficiently damage the employment relationship to such an extent as to leave Mr Carnie with no alternative but to resign.

[433] In summarising the series of events which began in late 1999, I have accepted the evidence of Mr Carnie, some of which is supported by the evidence of other witnesses, and some of which relates to discussions which took place "behind closed doors" between Mr Carnie and Mr Joy, in which circumstances I prefer the evidence of Mr Carnie. The chronology of events is as follows:

[434] Mr Carnie's evidence was that at some stage after Mr Joy became CEO, he began to be "left out of the loop", he was not consulted about things that he would previously have been consulted about. He did not attend meetings that he would previously have attended. He was not part of the selection process in relation to the proposed Livestock Advisory Board. In relation to that Board, whilst it never got off the ground, the evidence was that nominees were put forward and that at least one person, Paul Greaves, Mr Carnie's subordinate, was appointed to the proposed Board, without reference to Mr Carnie. He was not consulted about appointments or changes in areas of the company's operations for which he had responsibility. He was no longer part of discussions about strategic directions in his areas of responsibility, for, example livestock. These events happened over a period of time, and, he said, diminished his role.

[435] During the latter part of 1999 and during 2000 Mr Joy brought in a consultant, Mr Armstrong, who took over Mr Carnie's role in contract dealings with Amcor and W R Grace. Mr Carnie had known of Mr Armstrong's appointment in the area of distribution, but had no prior knowledge of his involvement with suppliers.

[436] In March of 2000 there were discussions regarding the restructure of Blue Ribbon, and Mr Carnie's evidence is that he was told that he was to continue to have responsibility for red meat administration.

[437] On June 13 2000 he was offered the position of General Manager Sales and Distribution. There were three meetings, one in June, and two in July. At one of those meetings Mr Joy told him that the position of General Manager Sales and Distribution would be located in House 6. Mr Carnie was aware that House 6 had recently been renovated at a considerable cost, had no disabled facilities, and no financial provision had been made for further renovations. Mr Joy had not told him that such renovations would be made. Although Mr Young's evidence was that Mr Joy had said that what needed to be done would be done, there is no evidence of any such discussions with Mr Carnie. Mr Carnie had reason to lack confidence in the quality of the physical arrangements were he to be moved again. The physical facilities provided for Mr Carnie in House 1 had been to an appropriate standard. When he moved to House 7 the standard was reduced. He clearly had little confidence in the provision of suitable facilities in a further move.

[438] There was no position description for General Manager Sales and Distribution and the position did not appear on the company's organisational charts. Mr Carnie did not have the training, skills, or background for a sales position. It was apparent to him that an effective sales and distribution manager would need more mobility than he possessed. The major customers were based in Hobart (Woolworth) and Melbourne (Coles). In my opinion, his view that it was "designed to extricate me from Blue Ribbon" was reasonably held, given the circumstances.

[439] I find that the offer of the position of General Manager Sales and Marketing, even if genuine, was not a position that Mr Carnie could reasonably be expected to accept. It was outside of his competencies for reasons of lack of training and experience, and it was reasonable for Mr Carnie to conclude that it would have been outside of his physical capabilities.

[440] On 30 June a red meat management meeting took place. Mr Joy became angry at Mr Carnie's failure to attend this, despite having told him "only a business catastrophe" would prevent him from working on the budget. Mr Carnie worked on the budget and sent an apology for non-attendance at the meeting. He acted on the basis of what he had been told by Mr Joy, but was the subject of Mr Joy's angry comments and strong language, which was overheard by other employees. Mr Carnie and Ms Tindall's evidence was that this incident caused him stress, and, following that event, he consulted a psychologist. His evidence was that at this stage he thought his "days were numbered". I accept Mr Phillip's submission that Mr Joy's conduct, on this occasion, was such as would be likely to seriously damage the relationship of confidence and trust between employer and employee.

[441] By July of 2000 his responsibility for skins and hides had gone to the sales and marketing area. His role in the negotiations of major contracts such as the Amcor contract had gone.

[442] In Mr Cameron's submissions, he questioned whether there was a diminution of Mr Carnie's duties and responsibilities, based upon the fact that Mr Carnie was still working long hours at the time of his resignation. He also cited Ms Tindall as saying that there had been a "small dwindling" of Mr Carnie's position. In fact, what Ms Tindall said was:

"...his livestock work...was going down and the things he was more in charge of seemed to be dwindling a bit".102

[443] Her evidence was that Mr Carnie was affected when he found out that "all his positions were being taken off him, slowly."103 Mr Kavanagh's evidence was that Mr Carnie's "level in the business seemed to have diminished."104

[444] In the latter half of July Mr Joy announced the appointment of a pig promotion officer, which, Mr Carnie said, caused him embarrassment and undermined his role.

[445] In July of 2000 Mr Ian Kavanagh told Mr Carnie that he had been instructed to take over the red meat administration, which, as recently as March, had been confirmed as continuing to be Mr Carnie's responsibility. Once this took place, then, Mr Carnie's evidence was, there would be an 80 per cent reduction in his duties. This event was one of the major contributing factors which led to the resignation. As Mr Carnie said: "the last detail came in July when it was announced that Ian Kavanagh would be taking on the administration responsibilities and removing the administration people to house 8".105 House 8 was physically inaccessible to Mr Carnie. Mr Kavanagh's evidence was that this was a key function of Mr Carnie's and one that he had been totally responsible for.

[446] Mr Carnie's evidence was that on 10 July he told Mr Joy that he did not have the skills set to perform the role of General Manager Sales and Distribution. On that day Mr Joy told Mr Carnie that his position of General Manager Commercial would cease to exist. Livestock functions would go to Mr Kavanagh and Mr Erichsen and administrative functions to Mr Kavanagh. Mr Joy denies that he told Mr Carnie that his position would cease to exist, but the evidence of the changes that had already taken place and those which had been foreshadowed, together with Mr Carnie's evidence, and the evidence of Mr Flynn's notes, in my view, supports Mr Carnie's version of events.

[447] During the hearing Mr Joy claimed that, had Mr Carnie refused the position of General Manager Sales and Distribution, he would have been able to remain in his position of General Manager Commercial. This is at odds with Mr Carnie's evidence, which was that on three occasions he was told that position would cease to exist. There is no evidence that Mr Carnie was told, at any stage, that he could remain in the position of General Manager Commercial. The evidence was that he was not told he had made a wrong assumption about the future of that position at any time leading up to his resignation, at the time of his resignation, or after his resignation. I think it very unlikely that Mr Carnie would have been able to remain in his position, for the reason that he had already been told that the position was to cease, and at no time was he told otherwise. I find that the alternative of Mr Carnie remaining in his position of General Manager Commercial was not an alternative that was available to him.

[448] In support of the contention that the position of General Manager Commercial still exists, and, by implication, would still have been available to Mr Carnie, Mr Joy claimed that the position of General Manager Commercial was now filled by Mrs Broomby. Mrs Broomby's evidence was that she was only performing some of Mr Carnie's functions, and that work previously performed by him had been "hived off" to a number of other employees. I find that the position Mrs Broomby was appointed to after Mr Carnie's resignation was not the same position as that which had been held by Mr Carnie.

[449] On 26 July Mr Carnie's secretary was taken to lunch by Mr Joy's secretary and offered another position within the company. She reported to Mr Carnie that she was told that his position was about to be made redundant, that he would be offered another position, but was expected to resign. Although this evidence was hearsay, the direct evidence was that later that day Mr Joy came to Mr Carnie's office and told him that his secretary was to move to another position within a week. This was the first Mr Carnie knew that his secretary was to be removed from him.

[450] If Mr Joy's secretary did, as is alleged, tell Mr Carnie's secretary that he was expected to resign, it would have been very telling evidence. It was open to the respondent to call Mr Joy's secretary, Ms Hogarth, to give evidence. Ms Hogarth could have confirmed or denied what was allegedly said to her at the lunch. The company called seven employees as witnesses, but not Ms Hogarth. The fact that they did not do so leads me to draw the inference that her evidence may not have been helpful to the respondent.

[451] By this stage all the pieces of the puzzle were in place. Mr Carnie's authority had been reduced. He was no longer privy to decision-making processes that he had previously been involved in because of his senior level in the company. Key aspects of his role and functions had been removed, or were about to be removed. He was to be moved to a location that did not have disabled facilities. His secretary was to be removed from him. He had been told that his position would cease to exist. He was offered a position that did not appear anywhere in the company structure and which was a position that he felt unable to fill, for reasons of lack of skills and experience and the physical inability to fill such a role.

[452] On 1 August Mr Carnie resigned. There are differing versions of the discussions between Mr Carnie and Mr Joy at the time of the resignation. Mr Carnie's evidence is that he told Mr Joy that he had considered the position of General Manager Sales and Distribution, the fact that he did not have the skill sets for that position, the fact that his position of General Manager Sales and Commercial was to cease, and that he had no choice but to resign from the company. Mr Joy's evidence was that Mr Carnie gave no reasons for the resignation at the time, apart from saying that he was going to be consulting and that he would have more flexibility in terms of lifestyle. I accept Mr Carnie's version of events. I do so, not only for reasons of the credibility of witnesses, but also because it is by far the more likely scenario, considered with all the other evidence.

[453] Mr Cameron submitted that, as was found in Sparrow v Little, there is no constructive dismissal if the employee acts prematurely; that changes to the employment contract must have reached the point of being an accomplished fact rather than a mere proposal. In that case, the employee resigned upon being told that a new employee would be appointed to oversee the office. The applicant sought assurances that her wages and duties would not be affected. The applicant, believing that her wages would be reduced, resigned. The Industrial Relations Court, when hearing the matter, noted that the law required an action on the part of the employer indicating a renunciation of its obligations. The facts of the present case are significantly different. Mr Carnie had been informed that his position was to cease to exist. The offer of the position of General Manager Sales and Distribution had been made. Some of Mr Carnie's functions and responsibiliites had been transferred to others, Mr Kavanagh had been informed of the transfer of the red meat administration functions, Mr Carnie had been told his secretary was being transferred. The employer had well and truly put the process in place. I find that Mr Carnie did not act prematurely.

[454] I find that the actions of the employer were the principal contributing factor which led to the termination of the employment relationship, therefore the termination was at the initiative of the employer. In my opinion, Mr Carnie genuinely believed that he had no alternative but to resign. It is difficult to see what alternatives he had. He could not remain in his position, because, as I have already found, he had been told that position would no longer be available to him. He could not accept the offer of General Manager Sales and Distribution, for the reasons given earlier in this decision.

[455] There were negotiations regarding the possibility of Mr Carnie providing consultancy services to the company. I think it probable that the reason for these negotiations is that Mr Joy had assumed that there would be a six month hand-over period following Mr Carnie's resignation. However, no agreement was reached in relation to this proposal. It did not reach the stage of a firm offer. Mr Joy's evidence was that there was no likelihood that the negotiations about the consultancy would be concluded, therefore the company had to accept the resignation. As it did not reach the stage of a firm offer, I do not need to consider whether or not it was an offer of a suitable alternative position.

[456] I find that there was no valid reason for the termination of employment and that it was unfair. There was no evidence of poor performance or conduct. The evidence was that Mr Carnie was a loyal, effective and hard-working senior employee of the company. Mr Carnie was blameless. The evidence was that the tasks and functions performed by Mr Carnie are still being performed by others; Mr Cameron's submissions were that Mr Carnie's resignation had left the company short of skills and had left a vacuum in the knowledge base of the company. There is clearly no operational reason for the termination of Mr Carnie's employment. I can only conclude that Mr Joy did not want Mr Carnie in that position for the reasons adverted to earlier. Mr Joy's evidence was that Mr Carnie was acting under a misapprehension when he resigned in the belief that his position as General Manager Commercial would cease to exist, yet he did nothing to disabuse Mr Carnie of his, allegedly, mistaken belief. He did not ask him to withdraw his resignation. I think it likely, therefore, that his resignation was not unwelcome.

[457] Having found that the termination was at the initiative of the employer and that there was no valid reason, it is not necessary for me to consider the question of redundancy.

Remedy

[458] When considering remedy where there has been a finding of unfair dismissal, the Act requires me to consider whether or not reinstatement is impracticable. Having regard for the circumstances of the case and the evidence going to the attitude of Mr Joy toward Mr Carnie, I find reinstatement to be impractical. It is unlikely that the trust and confidence necessary between employer and employee could be re-established. Were is not for this circumstance, I would have ordered reinstatement of Mr Carnie to his position and the restoration of wages and benefits lost during that period.

[459] In considering what compensation should be awarded, in lieu of reinstatement, I have considered the following factors:

  • Mr Carnie was blameless

  • He was a senior employee of the company with a salary commensurate with his status

  • He had given long and loyal service to the company

  • He has particular circumstances that make his future employment prospects problematic

  • He has attempted to find further employment, without success

[460] Mr Phillips said that Mr Carnie had every reason for staying and none for going, and I think that a fair statement. I see no reason, had the employer not acted as they did, why Mr Carnie would not have continued in his employment well into the future. This was a long-standing employment relationship and there was no suggestion that, had the actions of the employer not resulted in the termination of the employment, anything other than a long standing relationship would have been likely to continue.

[461] I note Mr Phillips' submission that the applicant should be placed in no worse position than if he were to be reinstated. I think it would be unreasonable to make an award of compensation which is significantly different to the amount which he would have received were he to have been reinstated without loss of salary and entitlements. This, of course, does place him in a worse position than if he were to be reinstated, because, if he were reinstated, he would also have ongoing employment and income.

[462] The period of time since the termination of Mr Carnie's employment is twelve and a half months.

[463] Lost remuneration is a fundamental element in assessing compensation. I have taken the remuneration that Mr Carnie would have received or would have been likely to receive during that twelve and a half months as a reference point in assessing compensation.

[464] Mr Carnie's gross salary at the time of the termination of his employment was $100,997 per annum. Whilst mention was made of allowances and the provision of a vehicle, nothing was put to me as to the value of those. I therefore make an estimate of what Mr Carnie's remuneration would have been during that twelve and a half months, had his employment not been terminated. The estimate is as follows:

Gross Salary $104,881.00
Estimated value of additional benefits, eg car, home computer, allowances $10,000.00
Superannuation @ 8% $9,190.50   
Total $124,071.50

[465] I have estimated Mr Carnie's remuneration for the relevant period at $124,071.50. I have done this on the basis of an estimation of salary and benefits arising out of his contract of employment.

[466] The evidence was that Mr Carnie has had no earnings since the date of the termination, therefore there is no deduction for earnings during that period.

[467] Because it is not possible to say with absolute certainty that circumstances may not have arisen during that period which may have reduced or affected the amount of remuneration that Mr Carnie would have received had his employment not been terminated, I am deducting an amount of 25% for contingencies and for the fact that the compensation is to be paid as a lump sum. Therefore the total amount to be awarded by way of compensation is $93,053.63.

ORDER

PUSUANT TO the power conferred on me by Section 31(1) of the Industrial Relations Act 1984 I HEREBY ORDER that, in settlement of the industrial dispute referred to in matter T 9163 of 2000, the employer, Blue Ribbon Holdings Limited ACN 009 487 674, 29 Killafaddy Road Launceston 7250, to Mr George Watson Carnie, Glen Haven, 50-62 Fairtlough Street, Perth, Tasmania, 7300 the sum of Ninety Three Thousand and Fifty Three Dollars Sixty Three Cents, in full settlement of this dispute, such payment to be made on or before 5.00 pm on 24 September 2001.

 

P C Shelley
COMMISSIONER

Appearances:
Mr Robert Phillips of Phillips Taglieri for the applicant
Andrew Cameron of the Tasmanian Chamber of Commerce and Industry Limited for the respondent

Date and place of hearing:
2000
October 20
Hobart
December 4,5
Launceston
2001
February 5,6,7
March 3
March6
April 9
Launceston
April 27
May 3,10
Hobart

1 Exhibit P16
2 Exhibit P15
3 Exhibit P14
4 Exhibit P13
5 Transcript p79
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38 Transcript pp230-231
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42 Transcript p116-117
43 Transcript p117
44 Transcript p132
45 Exhibit C1
46 Exhibit P18
47 Exhibit P19
48 Transcript p193
49 Transcript p131
50 Transcript p521
51 Transcript p523
52 Exhibit C1
53 Transcript p524
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56 Transcript p647
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58 Transcript p261
59 Exhibit P18
60 Transcript pp279-280
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69 Transcript pp441-442
70 Transcript p564
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75 Transcript p459
76 Transcript p575
77 Exhibit P23
78 Exhibit P24
79 Exhibit P25
80 Transcript p731
81 Mohazab v Dick Smith Electronics Pty Ltd No.2, 1995 62 Industrial Reports
82 Auckland Shop Employees Union v Woolworths, 1985 New Zealand Law Reports
83 Woods v WM Car Services, (Peterborough) Limited[1982] ICR 693
84 Exhibit P24
85 Milne v Metro Investment Holdings, 1427/99 M Print S1434 (30th November, 1999)
86 Librizzi v Flower Power Pty Ltd [2000] FCA 971 (20 July 2000)
87 Western Excavating (ECC) Ltd v Sharp (1978) ICR 221
Robins v Franklins Limited 3 May 1996 AIRC
Woolworths (SA) Pty Ltd v Russian, 14 May 1996, Supreme Court of South Australia
Mohazab v Dick Smith Electronics Pty Ltd No.2, 1995 62 Industrial Reports
88 Pawel v The Australian Industrial Relations Commission [1999] FCA 1660 (10 December 1999)
89 Sparrow v Little (t/as Milk Plus SAIRC (Hampton DP) (137/1999) 7/7/99
90 Gateway Tasmania Limited (T8415 of 1999) and Tricia Lette TIC 29 June 2000
91 Transcript p152
92 Transcript p200
93 Transcript p524
94 Transcript p649
95 Qantas Airways v Christie, [1998] HCA 18 on appeal from the Industrial Relations Court of Australia
96 Transcript p625
97 Transcript p523
98 Transcript p604
99 Woods v WM Car Services, (Peterborough) Limited[1982] ICR 693
100 Transcript p18
101 Transcript p115
102 Transcript p226
103 Transcript p219
104 Transcript p231
105 Transcript p157