DECISION

Fair Work Act 2009
s.120 - Application to vary redundancy pay for other employment or incapacity to pay

Datamars (Australia) Pty Ltd T/A Datamars
(C2014/5667)

Whether alternative employment is acceptable - redundancy pay obligation under s.120(2) of the Act - whether application to vary jurisdictionally competent - non-transferable, contingent credits - compensation by redundancy - scope for exemptions under NES compared to TCR Full Benches.

[1] This decision concerns an application under s.120 of the Fair Work Act 2009 (“the Act”) by Datamars (Australia) Pty Ltd (“the employer”) in which the employer seeks to vary the redundancy pay it would otherwise be obliged to pay Mr Tim Scott (its former General Manager) for reason that it obtained “other acceptable employment” for Mr Scott.

[2] In this case, there is no contest that the redundancy obligations arise from s.119 of the Act and not by way of any other workplace instrument or contractual arrangement. Further, there is no contest that the employer has an obligation under s.119 of the Act to pay the Applicant the requisite amount in redundancy pay. Given these two facts, the jurisdiction to make an application under s.120(2) of the Act is made out.

[3] Section 120 of the Act provides as follows:

120 Variation of redundancy pay for other employment or incapacity to pay

(1) This section applies if:

(a) an employee is entitled to be paid an amount of redundancy pay by the employer because of section 119; and

(b) the employer:

(i) obtains other acceptable employment for the employee; or

(ii) cannot pay the amount.

(2) On application by the employer, the FWC may determine that the amount of redundancy pay is reduced to a specified amount (which may be nil) that the FWC considers appropriate.

(3) The amount of redundancy pay to which the employee is entitled under section 119 is the reduced amount specified in the determination.

[4] The employer seeks to have the redundancy pay obligation varied to nil.

[5] Mr Scott contests the application by the employer and argues that the work obtained by the employer does not constitute “other acceptable employment.”

Background

[6] Mr Scott was employed in the role of General Manager pursuant to an employment agreement that was executed on 15 December 2009. That contract was entered into for the purposes of a position as Australian Livestock Sales and Marketing Manager. Mr Scott accepted a different position in 2012, as General Manager. The employment agreement stipulated, under the heading “Position” as follows:

You will be employed on a full-time basis in the position of Australian Livestock Sales and Marketing Manager or such other position as may be required by the company. (My emphasis)

[7] When Mr Scott signed the letter of appointment accompanying his employment agreement, he indicated that:

I have read and understood the terms of employment set out in this Contract and acknowledge that the covenants, obligations and restrictions contained in this Contract a reasonable in the circumstances.

[8] In February 2014, the employer acquired a new business, Zee Tags Ltd. As a result of the acquisition, the position of General Manager was no longer required in the new structure. A new structure was required because the acquisition had very significantly increased the size of the business and rather than a domestic (Australian) focus, the business was now regionally focused (with a sales and marketing presence not only in Australia but in New Zealand and throughout the Asia-Pacific region). The rational validity of the re-designed operational structure is not under challenge.

[9] The employer offered two alternative positions to Mr Scott, as a consequence.

[10] One of these was the position of Business Development Manager (“BDM”). The employer contends that this position had:

• the same remuneration and benefits as the General Manager position;



• the same hours as the General Manager position;



• comparable job security of the General Manager position; and



• comparable status and seniority of the General Manager position.

[11] The employer also contended through its written submissions that the new position was based at the same location as had been the General Manager position. The evidence as heard, however, seemed to suggest the there was uncertainty as to the longer term location.

[12] Given that the acquisition of Zee Tags had increased the size of the organisation by a factor of four (it was said), the employer contended that the position of BDM had real strategic value and genuine career prospects for Mr Scott.

[13] Mr Scott, however, contended that the new position was not acceptable to him and rejected the role of BDM within the new structure.

[14] Mr Scott argued that the BDM position removed his key responsibilities in relation to the business including quality/OHS, operations, accountancy, human resources and training. The BDM position had a “heavy focus on sales” instead, and he would no longer be required to manage any employees at all. Mr Scott believed “sales” had amounted to around 20%-30% of his role as General Manager. Mr Cashmore, the General Manager Asia-Pacific in the new structure, gave evidence that he believed that the BDM role would comprise at least 50% sales.

[15] Mr Scott considered that even if the position attracted the same remuneration, the BDM position had lower status, seniority and responsibility than did his previous role as General Manager. Mr Scott contended that as General Manager he had reported to a “superior” in Switzerland. But in the BDM position he would report to the General Manager Asia-Pacific (Mr Cashmore).

[16] Further, while as General Manager he was responsible for “planning, delegating, coordinating, staffing and organisational or decision making at the executive level in relation to obtaining direct results for the company” Mr Scott contended these functions did not find expression in the alternative role.

[17] In all, Mr Scott concluded that “the nature of the work as [BDM] would not require the same skills, duties or seniority or status as what [he] enjoyed as a General Manager.”

[18] In response, the employer argued that the role of General Manager previously performed by Mr Scott had included a strong emphasis on sales and business development and commercial strategy. The same emphasis was included in the role of BDM.

[19] There were documents on the file that seemingly suggested that the employer agreed that operational, financial and quality control functions had been within Mr Scott’s sphere of responsibility as General Manager, but the employer had employed senior employees to be responsible for those matters so that Mr Scott could concentrate on sales and business development. That had been a strategy, it was said, that had been agreed expressly with Mr Scott.

[20] But in the end, there was no evidenced claim to that end and these issues were not the subject of the claims by the employer’s principal witness, Mr Cashmore.

Consideration

[21] I do not consider that the contractual term within Mr Scott’s contract of employment - referred to above - is a matter that is influential in relation to the determination I am asked to make under s.120 of the Act. The only task which I am required to perform is to make the determination under s.120 of the Act.

[22] Generally, a contractual term agreed by the parties cannot derogate from the statutory National Employment Standards. The fact that Mr Scott may have contracted freely to accept the possibility of multiple positions cannot set aside the operation of s.120 of the Act where Mr Scott’s position is made redundant.

[23] In order to determine whether an employer has obtained acceptable alternative employment for an employee the Commission, firstly, must determine whether the employment that has been obtained, on the employee’s behalf, was in fact obtained by the efforts of the employer, in the manner described the Full Bench in Re: Derole Nominees P/L (“Re: Derole”): 1

“[…] the employer by purpose and effort may establish an opportunity which suits the employee and which crystallises as alternative employment of an acceptable kind.”

[24] Or later:

“[…] it will be seen that the intention is not to impose an absolute test on the employer’s ability to “obtain” alternative employment but rather it refers to action which causes acceptable alternative employment to become available to the redundant employee. The employer must be a strong, moving force towards the creation of the available opportunity.”

[25] An acceptable alternative role does not mean the same employment, clearly. But equally, on an objective assessment, the position must be within a range of tolerance as well.

[26] In Clothing and Allied Trade Unions of Australia v Hot Tuna Pty Ltd the Full Bench stated that:

“…the test of acceptability of the alternative employment is an objective one involving a consideration of such matters as pay levels, hours of work, seniority, fringe benefits, workload and speed, job security and other matters.” 2

[27] The list of relevant matters is not exhaustive: the subsequent Full Bench in Re: Derole added “location” to this list of relevant considerations.

[28] Generally, it appears that the Act directs the Commission to have regard to the totality of the circumstances affecting the relevant, affected employee(s), with particular attention being given to the indicia referred to above. No one factor will be determinative for purposes of the discretionary judgement as to whether or not the alternative employment obtained by the employer is acceptable and, consequently, if an obligation to pay redundancy pay might be varied or set aside.

[29] Further, the Full Bench in Re: Derole also made clear that the relevant test for determining whether an alternative position was acceptable to the employee did not rely upon the employee’s subjective response to the offer:

“We are unable to find in the context of the overall evidence given by these employees that [their reasons for rejecting the alternative employment] are anything but subjective and pay no regard to the reasonable expectation that an employee would seek to minimize the hardship which may arise from threatened redundancy.”

[30] That is, the Full Bench was of the view that employees should minimise the hardship of redundancy by accepting alternative employment that is obtained for them by their employer (at least where it is found to have been “acceptable” alternative work by the Commission) and their subjective views about the alternative employment are to be given no weight.

[31] I turn now to the particulars of the alternative position in order to evaluate its “acceptability”.

[32] Firstly, I make clear that I was not impressed by all aspects of Mr Scott’s evidence in these proceedings as to the precise measure of seniority which he enjoyed as a General Manager. Mr Scott claimed in his evidence that three other manager roles reported to him as General Manager. But one of these roles he in fact performed himself and the two other roles were performed by a single individual. Mr Scott’s evidence was self serving in this respect. It was not the only occasion either. Mr Scott’s evidence in relation to the foundation of his claims that the role envisaged for him in the domestic animal side of the business would have no genuine executive or strategic level functions was based on some unsound extrapolations from his prior experience.

[33] Notwithstanding this, the onus to prove the acceptability of the alternative position lays with the employer, and not with Mr Scott’s claims. This was made somewhat more complicated than would otherwise be the case as Mr Cashmore, the new General Manager Asia-Pacific, did not have a great deal of direct knowledge of the business as it was prior to the acquisition, and only a limited exposure to the role of General Manager (as performed by Mr Scott). This proved unhelpful in establishing the precise terms of the offer of alternative employment.

[34] The offer of alternative employment did exhibit a number of characteristics which would ordinarily lend support to a conclusion that the alternative position ought to be construed as an acceptable alternative position. As mentioned above, Mr Scott was to be remunerated in the position of BDM on the same basis as he had been in his role as General Manager. Further, it seems on the basis of the evidence before me that in the role of BDM Mr Scott would have enjoyed the same level of employment security and also have been required to perform the same hours of work. Mr Scott’s continuity of employment was preserved by the offer of alternative employment.

[35] There were new features of the alternative position as well. Mr Scott was offered a position within a much larger organisation which presumably afforded a wide range of opportunities compared to the narrower base in the pre-acquisition period.

[36] Further, the position of BDM generally is one which would appear to be well within Mr Scott’s skill set to perform. This is not a case in which Mr Scott was being required to perform duties with which he was unacquainted or incapable of performing. Thus there is was no concern that Mr Scott’s security of employment would have been made precarious by the prospect of underperformance or incapacity.

[37] But beyond the indicia of this kind, doubts emerge.

[38] The evidence of Mr Scott was that he would not exercise a number of the functions related to his previous position as General Manager. He would not be principally responsible for the profit and loss of the business overall; nor would he be responsible for human resource decision-making or occupational health and safety matters. Mr Scott was no longer to have any role in quality assurance issues in relation to the production operations generally.

[39] While it is not necessary for the alternative position to replicate the various functions of the original position in order to be acceptable, it is a salient consideration as to whether or not the alternative position manifests the same degree of seniority and executive status within the employer’s business. The position of BDM, as I will set out further below, does not provide compensatory executive level functions sufficient to retain the same degree of seniority within the employer’s business as did the role of General Manager.

[40] I think that when the acceptability of an alternative position for Mr Scott is considered it is necessary to give some considerable weight to issues of seniority and status. Mr Scott, after all, was the General Manager for the business in Australia and reported only to the chief operating officer in Switzerland prior to the acquisition. Such matters as seniority and status may not be as significant in other positions of a more operational kind.

[41] Mr Cashmore contended that while Mr Scott would now report to him and not directly to the chief operating officer in Switzerland, he (Mr Scott) nonetheless would have a role in executive planning in that he would be directly reporting to a member of the executive leadership group (“the senior management table”). This was evidence led in the proceeding and does not appear to have been a term and condition of employment in relation to the position that was offered to Mr Scott at the relevant time. It is, of course, the position as offered to Mr Scott at the relevant time that is critical for the determination I am required to make.

[42] The alternative position offered suggests that Mr Scott would have a role in securing corporate business in Australia and by so doing, in growing the business. But the offer of employment stated that he would be working with the national sales manager in that respect (or independently as appropriate) and would be required to achieve revenue and margin levels in line with budget expectations. This appears to be more of an operational level sales oriented function than the largely executive level function undertaken previously by Mr Scott. This appears to have been one of Mr Scott’s principal concerns, from my subjective perspective.

[43] Mr Scott appears also to have been offered a position in which he would have managerial functions, but equally so Mr Cashmore was not able to identify over whom Mr Scott would exercise such managerial control.

[44] This concern is exacerbated by the absence of detail around the role envisaged for Mr Scott in relation to managing on-farm trials in Australia and New Zealand. Mr Cashmore stressed the importance to the business of ensuring that such trials proceeded efficiently and that there was effective liaison with regulatory authorities. Mr Scott for his part interpreted the function as an operational level activity requiring his attendance in the field and on particular farms.

[45] I cannot say whether Mr Cashmore was correct in this assessment or not. All I can say is that the position description set out by Mr Cashmore as given to Mr Scott on 10 March 2014 lacked any particularity in regard to such matters, and that in its own right is problematic in relation to determining the position’s “acceptability”.

[46] It does not appear to me that there was any clarity around the precise role envisaged for Mr Scott in relation to this particular function at the time the offer of alternative employment was made to him.

[47] Again, this is a matter that also affects the perceived seniority and standing of the position in the business (as well is being a significant departure from the executive functions previously carried out by Mr Scott).

[48] That seniority, executive status and standing is also affected by the fact that the alternative position had not been crafted clearly within the organisational structure. On Mr Cashmore’s own admission the position was one which sought to address various “gaps in our offering to the market.” That is not to say that over time such a position would not have developed into a fully fledged and formal position within the Company organisational structure. But at that time it was offered to Mr Scott it had all the appearance of a “work in progress” rather than a formal alternative position.

[49] I am unable to say whether with further iterations between the parties the alternative position could have assumed a more defined role within the organisational structure. The evidence does not take me that far.

[50] These issues made identification of the precise level of seniority and executive status Mr Scott would enjoy in the expanded business difficult to determine.

[51] True it is that Mr Scott was to have an important role in relation to strategising in respect of the growth in the domestic animal side of the business, but this was a relatively small component of the employer’s overall business. In its own right, it is not enough to signal the alternative position was an acceptable alternative to the position of General Manager.

[52] There is no requirement that an alternative position in order to be acceptable must slavishly replicate every term and condition of the prior position. All the circumstances must be considered. Some features of the alternative position may well be inferior to the prior position, with the alternative position manifesting some compensating or offsetting benefits of another kind.

[53] In this particular case, whilst there are quite a number of indicia - which are set out earlier - which support the employer’s case, I consider that absence of any definable and substantial executive/strategic function and a very different measure of seniority and status in the new position inhibits a determination that the alternative position was acceptable.

[54] I must therefore dismiss the application under s.120 of the Act in so far as it seeks an absolute finding that the alternative position offered to Mr Scott was acceptable (and that this should cause the employer to be exempted from an obligation to pay redundancy pay to Mr Scott).

[55] That said, the legal representative acting for the employer made a submission that in the event I do not find that there was an acceptable alternative position offered to Mr Scott, I should nonetheless vary the amount of redundancy pay the employer must pay him.

[56] Equally, the legal representative acting for Mr Scott made a submission that in the event that I find that there was an acceptable alternative position offered by the employer, I should proceed to vary the redundancy pay obligation that falls upon the employer to ensure that Mr Scott nonetheless received a reduced amount of redundancy pay. The matters were put to me in this way (by the employer’s representative):

“Datamars’ primary submission is that it has offered, it’s offered acceptable alternative employment and that no redundancy payments are required. That’s our primary submission. If your Honour is against us on that, then the alternative there should at least be an appropriate reduction for the role that was offered to him.”  3

[57] And by Mr Scott’s legal representative:

“Lastly, your Honour, even if you're against me in all of that the section 120 is not a winner takes all section, it still confers a discretion upon your Honour as to what the redundancy pay ought be your Honour can award in this case. It's agreed between the parties that the full amount owing to my client is the equivalent of eight weeks. Your Honour, if you find that there has been acceptable alternative employment offered, can still exercise a discretion to award an amount between anything from zero to eight weeks and anywhere in-between. Unfortunately, your Honour there is not much case law I can take you to in the manner in which that discretion can be exercised.” 4

[58] Clearly, the submissions are incompatible as to the operation of s.120(2) of the Act, and it is necessary to consider the operation of the Act to determine whether either of the parties’ submissions to me can be acted upon by the Commission.

[59] Upon raising this issue with the legal representatives following the closing submissions being made I afforded them some short additional period of time in which to apprise me of their views in relation to the operation of s.120(2) of the Act in respect to varying the amount of redundancy pay (and how the Act would operate in the circumstances before me). The case for the employer was less emphatic in its supplementary submission. That said, some inquiry into the Act’s requirements is warranted.

[60] The scope for the Commission to vary a redundancy pay obligation arises under s.120(2) of the Act. But s.120(2) of the Act must be read in the context of s.120 of the Act as a whole.

[61] In the first instance, it appears that the exercise of the jurisdiction under s.120(2) of the Act is established only upon a positive finding been made that the employer does not have capacity to pay the redundancy pay obligation or otherwise has obtained acceptable alternative employment (for the purposes of s.120(1) of the Act). This is so because s.120(1) of the Act stipulates that the section (as a whole) only applies, firstly, if a redundancy obligation exists (s.120(1)(a) of the Act) and secondly, if the circumstances in either s.120(1)(b)(i) or s.120(1)(b)(ii) of the Act are made out.

[62] Section 120(2) of the Act, therefore, is the vehicle by which an employer makes an application, and seeks the full or a partial exemption from the general obligation. The discretion, by way of a determination, to vary the redundancy pay obligation (to a specified amount) is conditional upon the circumstances of either s.120(1)(b)(i) or s.120(1)(b)(ii) of the Act being established.

[63] Therefore, if an employer makes an application and is found to be unable to pay the amount otherwise required in redundancy pay, it may nonetheless be required to pay an amount that is less than the amount it would ordinarily pay. For example, there may be a revenue stream or cash reserve that might support a partial payment of the redundancy pay obligation, but not the entirety of the obligation.

[64] This statutory approach reflects the award clause awarded by the Full Bench of the Australian Conciliation and Arbitration in December 1984 in the Termination, Change and Redundancy Case - Supplementary decision 5 (“the TCR No.2 Full Bench”):

“We are prepared to award the following clause [...]:

9. The employer, in a particular redundancy case, may make application to the Commission to have the general severance pay prescription varied on the basis of the employer's incapacity to pay.”

[65] The principle - given effect by the award clause above - was established by the Full Bench of the Australian Conciliation and Arbitration in August 1984 in the Termination, Change and Redundancy Case. 6

[66] The TCR No.2 Full Bench gave as it is rationale for such an approach that it accepted an ACTU argument that an “all or nothing position” was undesirable where an employer argues a case in relation to its capacity to pay and scope for the Commission to vary an obligation to pay redundancy was appropriate.

[67] Section 120 of the Act reflects the approach of the TCR No.2 Full Bench.

[68] Section 120(2) of the Act also provides scope for an employer to make an application to vary the redundancy pay prescription where the employer has obtained acceptable alternative employment for an employee whose position has been made redundant.

[69] The TCR No.2 Full Bench introduced formally the award entitlement by which it sought to provide an opportunity for an employer to seek relief from severance payments where it had “gone to the trouble and expense of finding acceptable alternative employment for” an employee.

[70] In doing so it replicated its approach in relation to capacity to pay arguments cited above and determined is follows:

“10. An employer, in a particular redundancy case, may make application to the Commission to have the general severance pay prescription varied if he/she obtained acceptable alternative employment for an employee.”

[71] But where an employer had obtained alternative acceptable employment, the Full Bench in the 2004 Redundancy Case 7 was equivocal about the extent to which an employer nonetheless might be liable for any partial payment of a redundancy pay obligation in respect of any non-transferrable credits foregone by the redundancy.

[72] This equivocation arises from the fact that the 2004 Redundancy Case Full Bench, in reviewing and updating the severance standards, made clear for the purposes of that review that such non-transferable credits (at least such as personal leave, leave loadings, parental leave) were factored into redundancy payments in “a general way” only and given “limited weight”. 8 This observation was reflected subsequently in the 2004 Redundancy Case - Supplementary Decision:

“Those factors were the inconvenience and hardship associated with redundancy, including the trauma of dismissal; loss of non-transferable credits, such as sick and long service leave; loss of employment security, inferior conditions, loss of seniority, lower job satisfaction or diminished job status. It is obvious that loss of non-transferable credits is only one of a number of relevant factors. Our decision also makes it clear that in our view it is not appropriate to fully compensate employees for loss of non-transferable credits.” 9

[73] The 2004 Redundancy Case - Supplementary Decision of the Full Bench took the matter somewhat further by including long service leave amongst its list of non-transferable credits and stated:

“The decision also makes it clear that in our view it is not appropriate to fully compensate employees for loss of non-transferable credits. [...] Long service leave is not the only non-transferable credit.” 10

[74] The 2004 Redundancy Case Full Bench argued that because of the contingent nature of non-transferable credits it was not “mathematically possible” to fully compensate redundant employees for their loss for purposes of calculating redundancy. 11 In any event, the Full Bench also contended that:

“To that consideration must be added the high costs to employers of such an approach and the fact that we are concerned with the fixation of award provisions which operate as a safety net.” 12

[75] It is difficult to identify with any precision, therefore, the extent to which such non-transferable credits may be accounted for in any effort by the Commission to vary a redundancy obligation. This is so, as the 2004 Redundancy Case Full Bench explained, because such credits largely are contingent credits. This is the case in respect of long service leave (which is a contingent credit until vested), and even perhaps more so is the case in relation to parental leave. Equally, compensation for sick leave credits lost must also be approached cautiously as successive TCR Full Benches have resisted pay out of such credits upon termination (by the de facto means of a redundancy payment). 13

[76] The 2004 Redundancy Case Full Bench appears to have emphasised the inconvenience, hardship and trauma associated with redundancy pay as informing the quantum of redundancy pay.

[77] Thus, the scope to vary the redundancy pay obligation (on the basis of foregone contingent credits) to a specified amount more than (or above) “nil” in cases where an employer has found acceptable alternative employment may be limited, or problematic, given the 2004 Redundancy Case Full Bench commentary at least.

[78] I observe in passing that the three TCR Full Benches referred to above provided for various exemptions from the obligation to pay redundancy pay. More particularly, the 2004 Redundancy Case Full Bench provided an opportunity for employers to have the obligation varied in circumstances where an employee has been paid out long service leave under a pro rata arrangement but was also entitled to redundancy pay:

“It should be clear that our decision in relation to the new severance pay scale is based on the standard federal long service leave provision. Not all employees under federal awards are covered by the standard federal long service leave provision. In some cases employees under federal awards whose employment is terminated by reason of redundancy may be entitled to a pro rata payment for long service leave even though they have less than 10 years' service. While the Commonwealth provided material illustrating the position in relation to the standard long service leave provision, insufficient material was advanced to enable us to form a conclusion about the extent to which employees covered by federal awards accrue a right to pro rata long service leave on being made redundant with less than 10 years of service. For that reason we shall provide for applications to be made to vary the severance pay amounts to take such situations into account. Whether an adjustment should be made in the scale, and if so of what kind, are matters which could only be decided in the circumstances of the particular case.” 14 [Emphasis added]

[79] Such exemptions from the obligation to pay redundancy pay (which arise in instances in which an employer has not obtained acceptable alternative employment and must otherwise pay the full amount of redundancy pay) do not form part of the National Employment Standards and are not able to be relied upon any longer by employers.

[80] To return to the matter at hand, the employer pressed upon me an application - at least at the hearing - to the effect that in the event I should reach a conclusion that the employer had not obtained acceptable alternative employment for Mr Scott, then I should nonetheless reduce the redundancy obligation it would otherwise owe to Mr Scott.

[81] In so far as this presumption was pressed, it is not the case that where an offer of alternative employment has been made (but does not amount to “acceptable alternative employment” under the Act) the redundancy obligation should be discounted to the degree that the alternative offer approaches acceptability.

Conclusion

[82] On the evidence before me I have concluded - for the reasons given above - that the employer’s offer to Mr Scott of an alternative position (on his position of General Manager being made redundant) was not acceptable alternative employment. There is no scope for me to vary the amount the Company must pay as redundancy pay as a consequence (notwithstanding that the alternative position maintained a number of key conditions of the original position).

SENIOR DEPUTY PRESIDENT

Appearances:

Mr A. Ash, of Clayton Utz, for the Applicant

Mr C. Mossman, of M+K Lawyers, for the employee

Hearing details:

Brisbane

2015

16 February

 1   Australian Chamber of Manufactures v Derole Nominees Pty Ltd (1990) 140 IR 123; [1990] AIRC 980, Print J4414, 12 September 1990, Peterson J, Marsh DP, Oldmeadow C.

 2   Clothing and Allied Trade Unions of Australia v Hot Tuna Pty Ltd 4 July 1988 27 IR 226 (Munro and Peterson JJ, Leary C) at 230-231.

 3   Transcript of proceedings dated 16 February 2015 at PN579.

 4   Transcript of proceedings dated 16 February 2015 at PN651.

 5   [1984] 9 IR 115 at 134.

 6   [1984] 8 IR 34 at 75.

 7   Storage Services - General - Award 1999 & ors (“2004 Redundancy Case”) PR032004 (26 March 2004) Giudice J, Ross VP, Smith C, Deegan C.

 8   See 2004 Redundancy Case at PN137.

 9   Redundancy Case - Supplementary Decision PR062004 (8 June 2004) at PN9.

 10   Redundancy Case - Supplementary Decision PR062004 (8 June 2004) at PN9.

 11   See 2004 Redundancy Case at PN138.

 12   2004 Redundancy Case at PN138.

 13   See 2004 Redundancy Case at PN137.

 14   2004 Redundancy Case at PN155.

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