Breust v QANTAS Airways Limited [1995] QIRC 644 (1995) 150 QGIG 1491

1490 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [ I De cember, 1995 1 December, 1995 ] QU EENSLAND GOVERNMENT INDUSTRIAL GAZETTE 1491 ###########1/## N##ll#####h####l#IH###k###########l#lh###### QUEF. SLAND INDUSTRIAL RELATIO S COM\IISSIO ' Industrial Relations Ac1 1990 s. 295 - application for re111~1a1emen1 Raymond Reginald Breust AND QANTAS A1may~ Limited (l\o. BI Sr of 199-1) COMMISSIONER SWA1' 8 \lovcmber 1995 Application for Reinstatement Separauon Package Offered - Extension of Time Previously Awarded - Senior Position llcld - Progression Through Compan} Structure - Prom1ws MJde 10 Applicant om:r of Another Po~1t1on Within Company - Unsuuability for Rcinsiatcment Unsuitability for Rc- l·mplo) ment - Generous Separnuon P.ickagc OITerc:d Applicant's Work l11s1or_> Doc~ Not Suggest I onge,ity in l·mplo) ment 111 the One Position - Application Rejected. DECJ<;ION This application seeks the rcinsratcmcnt ol Mr R Ureust to his fonnerl} held position of Gener.ii Manager. Australian Rc,orb. a position situated in Brisbane. The employer \\JS Q:1ntas Airways Limned. J' ER I OD OF I· MP LQ } M EN r Mr Brcust was cmplo)ed from October 1990, until the date of cessation of emplo} men 1. 28 Jui) I 99~ ll1c explan,uion for the dela} in fonnall) hearing tl11s re1n,1atemcnt case 1s found in the fact that an extension of time applica11on \\JS succcssfull) litigated by the applicant before Chief C.ommiss1oner llall. I>ETAl LS OF ('OSI f[0;-,1 PlU: \'JO l'S U II ELD I he pos1llon held b) the applicant. accon.J1ng to his e\ idcnce. 1mohcd "the runnmg of the resortjs] and m th 11 I \\J, re~po11,1ble for the marl.etmg. rhc financial performance, the staff training and development nnd the oper,111onal performance nl all th1: resorts and in th,11 role I had the resort manager, rcpu11111g dncctl) 10 me on ...: ·. I he "resons" referrcd to 111cludeJ Gr1:at Keppel hi and. Brampton Island. Duok Island, Lizard Island and rhe Bcdarra Islands; all \\ ithin the State of Queensland REM lfN ERATIO N PACKAGE ATTAC HI NG TO POSITI O\ OF GE'.\ ERA L .\ U \" AGER, Al HRALL\ '1; RE SORTS Mr Breu)t had recei\ ed a base salal) of SS 1.000 per ) ear. The package also included the use of an American Express Card to the limit of S3000 per }Car. a full} maintained motor ,chicle. Superannuation and discounted domestic mr li ne travel (95%). P\Cfv\ GE RECE IV ED l"P Q'.\ CES!, \TJQ '\ Of E"1 PLOY\.1E NT 'The tcnninauon package provided to the applicant mcluded the following components·- Onc year's salary; The use of the Compan) \ cl11clc for a period ol three months after ccss:mon of employment. The offer of t\\0 first class tickets 10 anp\here in the \IOrld (this offer later changed from lirst cl~s to econom) cla.\s); The use of ou rplacemcn t serv ices. HRIEF BACb'. GRQl 1N P QF APPLl (A \" I Mr Breust. at the time of cessation of his cmplo) ment. \\ils aged 5 1 years. The applicant states that he commenced \1ork 111 the tourism/hospitality industry in 1968. In 1992/93. the applicant studied Financial Management together \,ith f"ood and Bc,eragc Management at Corne ll University. Other senior 111anagcmen t pos111ons \\llhin this industry ha\e been held b} the applicant O\er the years together with a period of tune working as a consultant specialising in hotel management and tourist de, elopment. part1cularl) 1,land and olT-shorc proJCCL~. WOR b HI SrQR) PRI OR lO <. ESS \I 10\ OF t:, MPLQY-' 11;,I\ r The applicant claims that at the commcnccrnent ol his employment with the respondent. lus employer wa, Austra li an A1rlmes. During 1993 this organisation was merged \\ith Qantas Aima)s and the applicant reported direct I) to Mr Jame~ Srrong. At the time of the merger. the applicant na, required to ,1gn a contract prepared h) the emplo)cr The applic,111t claims that hc was told word, lO the effect "1 f I didn't sign the contract then l wouldn't have a position. ,o I signed the contract" The Con t rac t I he contract contains. i111er al,a, the following 1e n ns:- "Ierminat1on of Aoommrnent 4.(1) lhe appomtment of the Emplo)ec hc:reunder ma, be terminated by either party giving to the other not lcs, than ninety (90) da, s prior wriuen notict of tcnnmat1on expmng on an) date. (2) In the: C\ent that the appointment ol the 1.mplo)cc is tcnninatcd by rhc gi, ing of notice under ,ub-clau,e ( l ). the Ch1ef I ,c:cuti\c ma} elect that tht Compaii) m .. l.e tu the Lmploycc a pa) ment 111 lieu ol the pc1 10d of notice of three (3) months Base Salary (as spccillcd in (a) of Allachmcnt I hereto. or as \aricd from lime to lime). in \\h1ch event. the ,1ppointm1:nt of the Employee shall 1cm1 i na1c fortlm1th. 17261_1 DOC -- 1 of 3 -- 1492 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [1 December, 1995 Tennination Pa~ 5. Jn the event that this Agreement is terminated b) the Chief' Executive on behalf of the Company otherwi:-,c than under Clause 9, the Chief Executive shall. in addition to any payment under Clause 4, make to the Employee a termination payment being a minimum of three (3) mon1hs' 13asc Salary as specified in (a) in Attachment I to this Agreement or as varied from time to time.''. [Clause 9 refers to Summary Dismissal provisions.] The contract was not for any specified time period. During the period of his employmelll, Mr Breust had applied, unsuccessfully, for a position of Regional General Manager within Qantas. At that time, the applicant discussed his career prospects \;ithin Qantas with Mr K Gilbert (at the time Executive (Jeneral Manager, Customer and Staff Services, Qantas Airways Limited) The applicant claims that whik he had indicated his interesl in fo1thering his career with the employer, at no time did he express dissatisfaction with his currently held position. \1r Breust discussed the issue of his ad\'ancerncnt with Mr Gilhett on a number ot occasions, mostly on an informal basis, \fr Breust viewed his relationship with Mr (iilbe1i as one based primarily upon friendship. After engaging in these discussions in April 1994, the applicant claims that Mr Gilbert telephoned him to say that tl:e Executive of the Company had determi11ed to remove him from bis position and replace him with another employee. Mr Breust states that whilst initially being concerned b) such an announcement, his unease lessened when !v1r Gilbert stated that Mr James Strong "was across it and that I had no need to be concerned". Mr Brcust ,\as told that a Mr J Angel was to take his position and that the employer was trying to find him another position within the Company. As a consequence of these discussions. Mr Crilbert arranged for Mr Breust to be inter vicwe\l by various departments within the employer organisation. The interviews which were conducted were unsatisfactory and the applicant claims that on some occasions the interviewing oniccrs did not know why they were interviewing him. In one instance, the applicant claims that a colleague who was required to interview him felt threatened by the process because he viewed the applicant as being better qualified than himself. During this period of time Mr Brcust assisted his replacement, Mr Angel,- to settle into his formerly held position. At all times. Mr Rreust claims that he was assared by Mr Gilbert that Mr James Strong was aware of'his situation and that Mr Breust would be found another position within the Company. Towards the end of Jurn: 1994. Mr Br.:ust claims that tv1r (iilben made contact with him and asked to meet with him personally. Mr Breu~t states "I le (Mr Gi!hert) said to me thal they h:1d failed to find me a position in Resorts and that failing that they couldn't find me a position that I was to be terminated.'' Mr Gilbert then offered \-1r Breust the package to which l have previously referred. The offrr was alkgedly put on the basis that if it was accepted, it was hest to finish the employment reblio11ship before the end of .Junt: for reasons relr.ting to Taxation Together with the aforementioned package. Mr Gilbert had fl\.:rsonally offered to Lhe applicant a holiday i!1 Phuket. Thailand. because he did not have the time to take the trip. Upon asking Mr Gilbert why he was being terminated, Mr Breust initially stated that he received no response, although. under cross examination, Mr Breust conceded that Mr Gilbert may have told him that he was being replaced because the employer was looking for "someone with a different mix of skills". At all times, the applicant states that were another position not able to be found within the Company. he would have been satisfied to have kept his previously held position. Upon his employment being terminated. Mr Breust asked Mr Gilbert for a reference to ''let me leave the position with some dignity and with my professionalism intact". By agreement between both parties. Mr Breust was to write his own reference and Mr Gilbert was to sign it. The text of this rcforencc is as follows:- 28 June 1994 Mr R Breust, General Manager., Australian Resorts, Brisbane 4001 Dear Ray, Thank you for your advice nf last friday, 24 June, that you intend pursuing your career outside of the Qantas Group. While I am sorry that you are leaving, l fully appreciate your view that there arc professional limitations to the amount of time one can productively spend developing the potential of holiday isla11d resorts no matter how appealing they are. However, I would like to note that the results you have achieved in taking Australian Resorts from a recessionary trough to a point where they are outperforming the market speak for themsdves. Your stewardship also produced considerable gains in the areas of guest satisfaction, staff satisfaction (reflected by the dramatic cuts in turnover) and environmentally sound management. The frnih of vour efforts in these fields will doubtles-; he enjoyL:d by rnar;y. both staff and guests. in the years ahead. l know that you will leave behind many good friends and colleagues when you depart. My best wishes to you for the future. Your:; sincerely KEN GILBERT Executive General Manager Customer and Staff Services." This falsification of the facts occurred because the applicant belic\cd that his employment prospects would be diminished were he seen to ha,,e been dismissed by his employer. Upon leaving the employ of Qantas Airways Limited, Mr Breust travelled to Asia, and then employed the services of the outplacement consulta11ts. After applying unsuccessfuliy for some 31 positions within and outside of Australia, Mr Breust secured a temporary position with the Queensland Department of Transport. For work on that project, Mr Breust is to be paid S46,000. Prior to commencing that position, Mr Breust received Social Security payments of approximately $290 per week for some 9 months. 17261 _I.DOC r 1 December, 1995] QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 1493 Mr Breust believed that he failed to gain alternative employment because of his age and because Mr Gilbert who had since left the employ of Qantas Airways Limited. was unavailable. as a current employee of Qantas, to discuss Mr Breust's work capacity with prospective employers. As well, Mr Breust claims that no-one at Qantas was prepared to talk about his particular situation. Since his termination of employment, Mr Brcust has been made aware that a particular position of Resort General Manager at Lizard Island has been adve1iiscd in the media. Mr Brcust saw this position as being one he might fill were the Coa1mission to grant his application. It should be noted that applications for the position referred to were to close two days after the hearing bef<Jrc the Commission. At the time of the hearing, Mr Greust had not applied for the position. Mr Brcust, in referring to this position, believed that he could work hannoniously and productively with Mr Angel. the person who replaced him in his previously held position. Mr Brcust hmvevcr, stated that he had not applied for the position because of the tenor of the following cited statement which, to him, showed that the former employer would not consider re-employing him. In this context. it is relevant to note that on 11 October 1995, Mr T Avery, Employee Relations Manager. Queensland of Qantas Airways Limited, signed m1 affidavit to the effect that:- " ....... 2. I have made enquires vvith Qantas to asce1tain whether there are other appropriate positions to which the Company could appoint Mr Orcust. llowever. from my investigations and enquires, I have found there arc no appropriate positions available within Qantas or within any of ils subsidiary companies.". While Mr Breust believed that he was unable to find a currently serving employee at Qantas who would act as referee for him with a prospective employer, he had not made contact with any former colleagues at Qantas on this point. EYlIIBNCEJlEMR (;JI,BER'I. Mr Gilbert previously held the positton of Executive (1cneral Manager, Customer and Staff Services for the respondent from January 1994 until August 1994. Mr Gilbert viewed the arplicant as "a very effective and competent hands-on General Manager in Australian Resorts". Afkr Mr Breust's unsuccessful application for !he position of Rcgional General ManagL:r. Mr Gilbert confir111cd that he and Mr Breust discussed Mr Breust's future career within the Company. Mr Gilbert confirms that a decision was made lo replace Mr Hrcust in the position he had held and that he was charged with the responsibility of finding another position within the Company for Mr Breust. At the time, Mr Gilbert claimed that Mr Breust was being replaced because of a requirement for a person with a "better mix of skills" in the position, Having actively. yet unsuccessfully, sought appropriate alternative employment for Mr Bre11,;l within the Company, Mr Gilbert approached Mr Breust to discu-;s the situation in which he had found himself. Mr Gilbert recalls that at the t1111e of seeking to con for with Mr Breust. he was aware that other senior management employees of the Company were reviewing their positions with the ( 'ompany as proposed changes to Superannuation la,vs were imminent and certain employees had expressed an interest in availing themselves of existing benefits prior to 30 June 1994. Upon the crucial question of whether Mr Gilbert told Mr Breust that Qantas Airways Limited was about to terminate his services, Mr Giiberl states·- "..... there were two issues. One was tliat I was still seeking to find employment for him. But the other issue was this whole issue about Superannuation and I suggested to Ray that he make sure that he was across whatever the implications were for him and he agreed to go and talk to his financial adviser about that.". Mr Gilbert clearly denied stating to Mr Breust that the Company was terminating his employment. On 27 June 1994, Mr Gilbert states that Mr Rreu~t contacted him and said that he wanted to leave the Company and at that stage further discussions ensued regarding his package and a reference. Mr Gilbc1i claimed that, with his knowledge of the consultancy industry, there are considerable employment opportunities for persons with experience in the industry. In response to a consideration of whether Mr Breust might he an appropriate employee to appoint to the position most recentlv advertised by the Company (previously cited). Mr Ciilbert believe~! that Mr Breust would not adequately fill that position. Mr Gilbert stated that an approach \Vas made to Mr Angel (Mr Breust's replacement) sometime in April 1994 and that the employer was "looking for someone with his type or skills fi.)r the job that was being the job of Australian Resorts, General Manager". Mr Gilbert confirmed that Mr Breust had not been made aware that these discussions were taking place. When asked whether Mr Giibert had discussed the issue of "mix of skills" or any perceived difficulties that Mr Breust may have in that regard. Mr Gilbert responded that he had only spoken to Mr Breust about his performance afler he had unsucccs:;fully applied for the position of Regional General Mar1ager. The evidence of Mr Gilbert is that Mr Angel was notified that he had gained the position of General Manager of Australian Resorts on 20 \fay I 994. The salary package offered to Mr Angel exceeded that previously paid to the applicant. In Mr Gilbert's words "As soon as the position was accepted, let Ray know that he was being replaced." Mr Gilbert also confirmed that notv,:ithstanding the fact that Mr Rre11st bad lost liis job, he had advised Mr Breust that he should harbour no concern about his employment with ()antas Airwa'vs Limited. As well, Mr Gilbert confirmed that at no stage had Mr Breust ever stated that he did not like his position as General Manager. Australian Resorts nor did Mr Brcust give Mr Gilbert the impression that he wanted, in Mr GIibert's vMrds, to ''throw it in". ANALYSIS OF THE EVll)EJ'."CE BEFORE THE COMMISSION In all, the only notable contentious issue bet\veen the paiiies centres upon the discussion held between the applicant and Mr Gilbert in June 1994 The applicant claims his services were terminated. Mr Gilbert states that Mr Breust chose to leave the employ of the Company. l prcfor Mr Brcust's version of events over that of Mr Gilbeti. fhe ·weight of the evidence more than strongly leads to an acceptance of Mr Breust's evidence as being the more credible. 17261 I.DOC -- 2 of 3 -- 1494 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [l December, 1995 I liave formed this view for the following :-easons (inclw,ive of having viewed the witnesses giving evidence)> ~fr Breust had shown no desire to discontinue his employment with the respondent: Mr Brcust had no reason to believe Lhat his work performance was anything other than at a standard expected by the respondent; Mr Breust had never been tolci by the respondent. in either written or oral form, that there \\ere any concerns regrading his work performance; Mr Breust had expressed a desire to advance his career options within the Company and appears to have been actively supported by Mr Gilbt:rt in this regard: There was never any suggestion by Mr Breu~t that, were he unable to gain a more senior position within tlit: Company, he would leave his formerly held position; Mr Breust lost his position as General Manager, Australian Resorts without ever knowing that the employer was considering replacing him nor giving him the opportunity to discuss the issue: Mr Brt:ust in almost "blind faith". accepted the assuranct:s of Mr Gilbert (who, I accept, spoke. as well, on behalf of Mr James Strong) that the situation was under control and that another position ·would be made available to him: All of the abovementioned factors arc agreed to by both Mr Hreust and Mr Gilbert. Against this background. it would seem most peculiar for Mr Breust to acquiesce to losing his job. It is more realistic LO accept that the respondent was simply not ill a position to justify keeping Mr Breust "on the books" as it were, for any lengthy period of time. I accept that Mr Gilbert genuinely believed that he would have been able to assist Mr Brcust in finding another position with the Company. 1 also believe that he exercised his best efforts to achieve this goal. But, at the end of the process. he was simply unable to deliv~r on his promises - for that is wliut he had given Mr Breust promises. Mr Gilbert albeit a short-term employee \)f the Company, held a senior management position within the Company and appeared to have the authority to speak on behal r of Mr James Strong. lt is not unreasonable for Mr Breust to have accepted his \\Ord. I believe that what was lost on the respondent (and particularly on Mr Gilbert) was the fact that Mr Brcust was dismissed from his job as General Manager. Australian Resorts. While he was working in that position, the employer had. unbeknown to Mr Breust, offered his job to another person. This can create nothing other than a dismissal of Mr Breusl from the position he held with the Company. It is not a case of Mr Breust being moved from one position to another \Vithin the organisation. It is true tha1 he was "h.cpt on the books" for a short \i1ile. but this situation docs nol derogate from the fact that he had lost his job. What then occurred was that Mr Breust, having lost his _ioh, was undc:rgoing a process of apply:ng, albeit internally within the organisation, fi.,r other j\)bs. The respondent has submitted that I vicv, the dismissal as one based upon the operational requ1remcms of the business Whilst thi:c, proposition was not elaborated upon v,ith any degree of specificity in the hearing, it was put i(1 me by the respondent's advocate in the context that alternative positions \\ ithiu the Company infrastructure were unavailable and therefore operational n.:quin::mcnts of the Company dictated that Mr Brcust be dismissed. Based 011 this premise, the re:::-pondent bciievcs that the cessation of employment could not be viewed as harsh or unrezisonablc. The focus of this argument from my perspective, is questionable. A consideration of "operational requirements of the employer's undcrt,1king. establishment or service" (sees. 291 of the lndusirial Relations Act 1990) surely must be considered at least within the context of the dismissal which bad occurred. The dismissal which had occurred was the dismissal from the position of General Manager. Australian Resorts. The fact that the applicant Jid not leave the respondent's business until some time later merely reflects the fact that there was a prolongation of the dismissal process. In this context, however, l need to examine what was submitted by the respondent as its reasons for removing the applicant from his position of General Manager. Australian Resorts. As well, when one considered the payments made to the applicant upon cessation of employment, the respondent contended tbat it would be difficult to find the actions of the employer harsh or unreasonable in this regard. In addressing, the question of relief soua}n bv the aoplicant -the respondent believed that reinstatement b .., ,, , ' was not an option as "'it is clear that the Company was seeking a different focus in the particular position: the different mix of skills that was being sought gave a different focus to the job'·_ ~ This is a case where the applicant genuinely seeks reinstatement. !\1r Breust is 52 years of age; had enjoyed his position with the employer; was well regarded and had hoped to continue his working career with that employer. Against this, the respondent states that the applicant's skil!s are no longer able to be utilised effectively within its organisation. I find there 1s little doubt that the manner by which the respondent sought to deal with the applicant breaches applicable industrial relations I ,cgislation. It is not necessary to restate the chronolog) of events that occurred to highlight this point One is !ell to wonder whether it was \1r Breust's own candid conversations with Mr Gilbert which ultimately led to his dismissal. His comments that he might like to consider advancing his career within Qantas may well have provided the trigger for the respondent to seek to replace him in the position which he liad held for a period of time. Whether tlic abovementioned speculative perspective be true or otherwise, the rcsoondcnt's actions towards Mr 13reust in dismissing him from the po;ition be had held as General Manager. Australian Resorts were harsh, unjust and unreasonable by any contemporary standard Mr Brcust was never told his performance v,as deficient in any manner: rather, he was led to believe that his performance was more than acceptable; he wa~ u11a,vare that the employer had offered his position to another person and, as a consequence of those actions, he was promised that another position would be found for him. This, of course. <lid not occur. The applicant did not have a "valid reason" for dismissing the applicant (see s. 291.( 1) and (2) of the industrial Relations Act I 990). I must no\\' consider whether I am in a position Lo award the relief sought hy the applicant. Were the employer to haYe fairly formed the view that the applicant was not the appropriate pcrson to hold the position of General Manager, Australian Res01ts. then a number of processes should have been utilised by the employer to address its probiem While the Commission i:; empowered to review the manner in which the employer acted vis a v;s relevant industrial relations Legislation in terminating the services of the applicant. broader issues nc~d to be considered, namely, the employer's requirement for a different approach to the position of General Manager. Australian Resorts. 17261 I.DOC 1 December, 1995] QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 1495 I acknowledge the fact that Mr Breusl had never been afforded the opportunity to attempt to respond to the employer's altered perspective regarding this position. This factor was not explored with any degree of particularity during the hearing. The difficulty faced in this regard is that, in the pmiicular circumstances of this case, it is not the Commission's job to establish for the employer the criteria it should utilise in determining the most appropriate person or "mix of skills" required for the position in question. This perspective relates to the circumstances of this case and must be viewed in the context that the position under review is one of a most senior nature. At one of the highest :,trategic levels within the Company, the Company's owners must have confidence in the person who is charged with implementing such strategy, What appears inescapable is that, notwithstanding the manner in which the employer sought to tenninate Mr Breust's services, it did not wish to retain Mr Breust in the position he had held because it believed that Mr Breust was not the appropriate person for the job. At the time of the applicant's dismissal. the relevant Legislation was as follows:- "S.297.( I) Unless satisfied an employer has not dismissed an employee contrary to this Division other than section 307 (Employer must notity CES of proposed dismissals), the Commission may make the orders it considers appropriate to put the employee in the same position (as nearly as can be done) as if the employee had not been dismissed. (2) The orders the Commission may make include an order - (a) declaring the dismissal to have contravened this Division; or (b) for a contravention of a provision other than section 293 (Notice of dismissal or compensation to be given) or 307 (Employer must notify CES of proposed dismissals) - requiring the employer to reinstate the employee; or (c) requiring the employer to pay the employee compensation.". There will be occasions when the relief of reinstatement is ditficult to award. This is one such occasion. At the time of the applicant's dismissal. the focus of the Legislatiou was not as centred as it currently is on reinstatement as the primary source of relief_ The late 1994 amendments to the Legislation introduce the statutory test of "impracticability'' of reinstatement needing to be satisfied before compensation can be awarded. This, of course, does not detrnct from the applicant's claim for reinstatement uor from the general thrust of the Dismissal provisions of the Legislation, It is not a question of reinstating Mr Breust to a position which arguably could be successfully filled by a range of people. It is a question of attempting to reinstate Mr Breust to a very senior position for which the employer no longer believes Mr Breust is suitable (uotwithstanding the fact that Mr Breust was apparently suitable in that position for some time). As well, I am asked to consider the question of re-employment. The particular position raised with me was the advertised position (previously cited). However. I presume the applicant would wish me to consider the applicability of re-employment generally within Qantas. I have accepted that the employer docs not believe that Mr Breust would be suited to the adve1iised position. As \VelL I accept the employer's stated comrnenls tlrnt there are no suitable po-;itions available for the applicant within Qantas. In this context, I reiterate the fact that the applicant has held a very senior position within the Company. IIaving weighed all of these factors, I am unable to reinstate the applicant Lo the position he formerly held with the respondent nor have I determined to re-employ the applicant. 156663-104 In considering the question of compensation, in lieu of reinstatement, I am unable to disregard the generous separation package received by the applicant. The parties were asked to provide an estimate of the quantum which attached to such package. While it was difficult for the parties to so do, a reasonable estimate would put the payment well beyond the equivalent of 12 months salary. fhe awarding of reinstatement and compensation is at the discretion of the Commission. The Act states that the Commission "may make the orders it considers appropriate to put the employee in the same position (as nearly as can be done) as if the employee had not been dismissed''. In this instance, while the applicant is 52 years of age, he was not a long-term employee of the respondent. He is one who has held a series of senior management positions within the hospitality industry over the years. His background suggests strongly of portability within the industry. While he states that he would wish to have stayed with the employer until retirement, his work history does not suggest longevity in any one position, although I acknowledge that as one's age increases, so does the likelihood generally that one may wish to settle more into longer term employment. f am also aware that the applicant has been unsuccessful in obtaining alternative, full-time employment in this industry. The applicant, however, has secured contract work for a period of time, I have considered the submission of the applicant that he would wish to have remained in his employment with this Company for many years to come, However, as I have already commented, I do not accept that such an outcome was a foregone conclusion given the applicant's work history, As well, it is not inappropriate for the Commission to give consideration to the fact that one might, when considering the question of compensation, consider the possibility that the employment relationship might have come to an end as the result of a lawful dismissal or redundancy which was not harsh, unjust or unreasonable. In this vein, I have considered the submissions made by the respondent that Mr Dreust did not possess the '"mix of skills" that the employer believed it now required in the position he formerly held, My views on this proposition have been detailed earlier in this decision. While I have found the manner in which the Company conducted its business with regard lo Mr Breust to be totally inappropriate and in obvious disregard of current Industrial Relations Legislation, as a matter of common sense and fairness to all I must take into account the separation package, as well as the other factors I have raised in this decision, afforded to Mr Breust by the employer. Having done this, I find I am unable to award any payment of compensation to the applicant. I dismiss the application. D.A. SW AN, Commissioner. Appearances:- Mr F Dawson of Cleary l Ioare Solicitors for the Applicant. Mr P Kite of Counsel instructed by Mr M Whitehouse for the Respondent. Operative Date: Reinstatement Application Dismissed Decision: NIA Released: 17 November 1995 17261 I.DOC -- 3 of 3 --