Sandra Farrell and Hans Continental Smallgoods Pty Ltd [2005] NSWIRComm 1102

Industrial Relations Commission of New South Wales

CITATION: Sandra Farrell and Hans Continental Smallgoods Pty Ltd [2005] NSWIRComm 1102

APPLICANT Sandra Farrell PARTIES: RESPONDENT Hans Continental Smallgoods Pty Ltd

FILE NUMBER(S): IRC5628 of 2004

CORAM: McKenna C

CATCHWORDS: Unfair dismissal - Restructruring - Bona fide redundancy also an unfair dismissal - Compensation ordered

Industrial Relations Act 1991 LEGISLATION CITED: Industrial Relations Act 1996

CASES CITED: Amcor Limited v Construction, Forestry, Mining and Energy Union [2005] HAC 10

HEARING DATES: 03/07/2005; 03/08/2005; 05/17/2005

DATE OF JUDGMENT: 06/23/2005

APPLICANT LEGAL REPRESENTATIVES: Mr J Law, agent

RESPONDENT Mr M Rogers, agent

DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: MCKENNA C

23 June 2005

Matter No IRC 5628 of 2004

Sandra Farrell and Hans Continental Smallgooods Pty Ltd

Application by Sandra Farrell re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996

DECISION

[2005] NSWIRComm 1102 1 This is an application made pursuant to s84 of the Industrial Relations Act 1996 ("the Act") in which Sandra Farrell alleged her termination of employment with Hans Continental Smallgoods Pty Ltd amounted to a harsh, unreasonable and unjust dismissal.

Employment history 2 Mrs Farrell worked at the same office in Blacktown for 15 years for a number of different companies, most recently for Hans as its Senior Accounts Payable Clerk. In May 1990, Mrs Farrell began casual employment with Chisolm Manufacturing; she became a permanent part-time employee in 1993. Between March-August 1994, Mrs Farrell took what she thought was maternity leave. Mrs Farrell was informed (erroneously or unlawfully, it would appear) upon her return to work that her employment had been terminated and, as a result, her continuity for long service leave entitlements had been lost. Mrs Farrell continued to work for Chisolm until November 2000, when it was purchased by OSI International Foods. In March 2002, Mrs Farrell resigned from union membership and her position as union delegate when she was appointed to a salaried position with OSI. In 1993, OSI sold its operations to Hans. As part of the arrangements in connection with the transmission of business, Hans made an offer of employment to Mrs Farrell in a letter dated 25 November 2003. Mrs Farrell accepted that offer and began working for Hans in December 2003 under the terms agreed in the letter. 3 Mrs Farrell was employed in Hans's Bankstown office as Senior Accounts Payable Clerk. Mrs Farrell's employment with the company continued without incident until August 2004, whereupon it emerged the company had restructured its operations with the result that the work Mrs Farrell performed was to be performed from another of Hans's offices in Colmslie, Queensland. 4 Mrs Farrell's Blacktown-based position of Senior Accounts Payable Clerk disappeared in the restructure and Mrs Farrell was not offered the opportunity to relocate to Queensland along with the emigration of Hans's accounting functions from NSW to Queensland. Although the evidence was unclear on this point, it does not appear Mrs Farrell's position itself was moved to Queensland. That is, there was no evidence to indicate a position with a designated title of Senior Accounts Payable Clerk became part of the staff establishment in the Queensland office. Rather, it appears the work was under rearrangement as part of an integrating of accounting functions and, as a result, the work Mrs Farrell and other employees performed was centralised to the Queensland office as part of the restructure. One senior manager explained that under the changes an "Accounts Payable supervisor and an Accounts Payable clerical position were required for the Queensland office". There was no evidence anyone now holds a position with a designated title of Senior Accounts Payable Clerk, but new staff were appointed to accounts positions with other titles. 5 Mrs Farrell's case contended that Hans's mishandling of the redundancy gave it the additional characteristics of an unfair dismissal. In short, Mrs Farrell's case contended the company's handling of the matter was so poor that the circumstances amounted to an unfair dismissal as well as a redundancy. On the other hand, Hans's case contended the matter was dealt with in a timely and industrially appropriate way, and in a way designed to attempt to mitigate adverse effects on Mrs Farrell. In particular, Mr M Rodgers, Hans's agent, submitted the company did not dismiss Mrs Farrell; rather, it endeavoured to facilitate ongoing employment by offering an alternative position of Purchasing Officer. (The alternative position and the question of severance payments are considered more fully in a separate decision delivered today in IRC2005/5706). He further submitted the termination of employment was at the initiative of Mrs Farrell in that her refusal to accept the alternative position was akin to refusing a transfer. On one view, he submitted, there was no redundancy of Mrs Farrell's job within the company's business as it was simply transferred to Queensland. Although Hans gave notice of termination by redundancy in its letter of 31 August 2004, Mr Rodgers submitted that, properly characterised, the letter was a response to the real cause for the termination of employment, namely, Mrs Farrell's refusal to accept another position that was on offer. In the alternative, Mr Rodgers submitted that as Mrs Farrell refused an offer of suitable, alternative employment, the dismissal was not unfair. As a further alternative, Mr Rodgers submitted the termination of employment was not an unfair dismissal because it was a redundancy. 6 The evidence disclosed the following. As early as November or December 2003, restructuring was being discussed at a managerial level. For instance, the evidence of Nicholas Roach, Plant Manager, indicated "road shows" had been held where potential change was discussed between senior managers. Venthan Rasanyakam, who was both the Plant Accountant and Mrs Farrell's line manager, was informed at a meeting in late-November 2003 the business would be restructuring. The evidence of Jurie Fourie, General Manager - Human Resources, also confirmed there was discussion around that time of sections being moved to Queensland. Han's Human Resources Manager at Blacktown is Gary Schweizer. Mr Schweizer knew "very soon after the takeover" the accounting systems would need to be integrated; he understood that discussions were being held about how consolidation would work. Mr Schweizer did not hold any discussions about those changes, explaining "to concern people about their future at that stage would be reckless from an employer's point of view". 7 By May 2004, the company's plans to restructure were well advanced. In this respect, the evidence of Mr Rasanyakam indicated that, around late-May 2004, he was aware the company would be establishing a "shared service site" in Queensland. Mr Rasanyakam was by that time aware the company intended to consolidate all its accounts payable functions in Queensland. Under cross-examination, Mr Rasanyakam conceded that although he did not know the date the change would be implemented, he was told the restructure was going to happen. Despite being aware the decision had been made, Mr Rasanyakam did not communicate any information about the restructure to Mrs Farrell. In a vein similar to Mr Schweizer's concerns about not recklessly concerning employees with advice about changes, Mr Rasanyakam felt he should not "trouble" or "worry" employees with information about the restructure when he did not know the specific date for the implementation of the changes and because matters might linger. In any event, Mr Rasanyakam did not consider it was his role to advise Mrs Farrell about such matters. In this respect, Mr Rasanyakam explained his view that discussions about redundancy-related matters appropriately should be dealt with through Hans's human resources process rather than by him directly. Despite his human resources role, Mr Schweizer did not discuss the restructure with Mrs Farrell either. Mr Schweizer's view was that a definite decision had not been made and, thus, discussions would be premature. 8 Mrs Farrell first became that change was afoot when she received an email on 12 August 2004. The email was titled "New appointments & Changes in Accounts Payable/Accounts Receivable". Bronwyn Wood, Management Accountant, used the email to announce the appointment of an Accounts Payable Supervisor and an Accounts Payable/Accounts Receivable Clerk in Queensland. The email also advised that a third person was relocating permanently to the Accounts Payable section of the Colmslie site. Mrs Farrell was concerned about the advice in the email because of her role within accounts. Even after the announcement of the new appointments, no one within Hans's management saw fit to hold discussions with Mrs Farrell. Instead, Mrs Farrell initiated some inquiries of her own to try to ascertain what was happening. Mrs Farrell sent an email to Ms Wood seeking information about how the new appointments would affect the existing accounts staff and whether the existing staff would still have jobs. Mrs Farrell also opined to Ms Wood that it would have been more "tactful" to advise employees working in accounts of the changes before the email was sent. Ms Wood forwarded a reply to Mrs Farrell asserting the new staff had been recruited to assist with the volume of work. As Mrs Farrell noted in a further email, Ms Wood's email did not respond to the specific queries she had raised. 9 A further week passed after the announcement of the new appointments without any discussions or advice being provided to Mrs Farrell, even though she had copied the emails to several managers and had asked for further advice. Then, on 20 August 2004, Mrs Farrell was called on short notice to a meeting with Mr Schweizer and Mr Rasanyakam to discuss a "sensitive" matter. At the meeting, Mrs Farrell was relevantly advised of the following three matters: (1) Mrs Farrell's position of Senior Accounts Payable Clerk had been made redundant as the position had been filled in Queensland; (2) Hans had an alternative position for Mrs Farrell, namely that of Purchasing Officer; and (3) if Mrs Farrell did not accept the alternative position of Purchasing Officer, Hans would not pay Mrs Farrell any redundancy payment. 10 Mr Schweizer told Mrs Farrell to go home and discuss the position over the weekend with "hubby", which the applicant's agent, Mr J Law, characterised as an unprofessional put-down for an employee of 15 years' standing. On 23-25 August 2004, Mrs Farrell was absent from work on sick leave. During that stress-related absence on sick leave, Mrs Farrell was contacted twice about the alternative position - even though the company had not provided Mrs Farrell with the job description she had requested for the alternative position. 11 On her return to work on 26 August 2004, Mrs Farrell was provided with a job description. At a meeting that day and in subsequent meetings on 27 and 30 August 2004, Mr Schweizer reiterated his advice that if Mrs Farrell did not accept the alternative position she would not receive a redundancy payment. Mr Schweizer also clearly indicated to Mrs Farrell that if she did not accept the alternative position, she would, in his opinion, be resigning of her own accord. Mr Schweizer and Mr Rasanyakam likened Mrs Farrell's disinclination to accept the new job as refusing a transfer. On 31 August 2004, Mrs Farrell informed Mr Schweizer and Mr Rasanyakam she did not want to accept the alternative position. She had obtained professional advice about the matter in reaching that decision. Mr Schweizer signed a letter dated 31 August 2004, which was given to Mrs Farrell on 1 September 2004, giving notice of termination of employment to Mrs Farrell. The letter read as follows: Dear Sandra,

Re: Restructure of Accounts Dept

The company has held discussions with you to advise of the decision to make the position of Senior Accounts Payable Clerk redundant.

As has been indicated to you in various discussions, the company has fully explored all alternative positions. The Company believes that a suitable and viable alternative position in status and salary is available, namely that of Purchasing Officer, and has offered you this role accordingly. Unfortunately, you have declined this opportunity.

The Company has now interviewed a number of applicants for the suitable and viable alternative position that has been offered to you. We would like to give you an additional 24 hour period to reconsider your decision before an appointment is made. Should you change your mind the new role will commence on the [sic] 20 September, 2004. If your decision is unchanged the Company will move to make your employment redundant effective 29 September, 2004. This letter serves as your official notice of termination of employment.

As the company has offered you a suitable and viable alternative position, severance pay will not be payable.

I would like to take this opportunity to wish you well in your future endeavours. Should you have any questions please do not hesitate to contact me on [telephone number].

Your sincerely [signature] Gary Schweizer Human Resources Manager 12 On 2 September 2004, Mrs Farrell re-confirmed her advice that she did not wish to accept the alternative position. Mrs Farrell was then given a significant volume of work to complete in connection with the handover to Queensland. Mr Rasanykam released Mrs Farrell from working the notice period on Friday, 24 September 2004 (rather working than the full notice period to Wednesday, 29 September 2004) "as it was apparent she had completed these tasks".

13 Mrs Farrell was aware that other employees who were made redundant had received redundancy payments. Mrs Farrell was also required to work the bulk of her notice period. On the evidence, no other employee was offered an alternative position, denied a redundancy payment or required to work any part of the notice period. 14 There were some minor differences between the parties concerning events in August-September 2004 (and, as such, this decision approximates some dates), when particular discussions were held and what was discussed, but nothing of substance turns on these small differences in the witnesses' evidence in these respects. Consideration 15 The company's management had been aware of the restructuring well in advance of 20 August 2004, that being the date Mrs Farrell was first informed of the redundancy. There had been ample time to discuss the matter with Mrs Farrell for months preceding 20 August 2004, but the company did not hold any such discussions in a timely manner. 16 It is disingenuous to suggest the company had not made a definite decision about the restructuring affecting Mrs Farrell's position before 20 August 2004 or that this was the earliest date discussions reasonably could have been initiated by management. There is evidence to indicate restructuring was being discussed at a senior managerial level as early as December 2003. By May 2004, Mr Rasanyakam knew for certain the restructure would be occurring, albeit not the precise date. It may be inferred Ms Wood knew a restructure was definitely occurring well before 12 August 2004, because of the recruitment for the new accounts personnel. Apparently, Ms Wood had to obtain permission from Ms Taylor (General Manager, Finance and Commercial) to advertise the positions in the first place; this probably occurred in July 2004 or perhaps earlier. In the time line much closer to 20 August 2004, several other senior or supervisory employees such as Mr Rasanyakam, Mr Roach, Ms Taylor, Shane Stubing (Site Manager) and Nina Russell (Purchasing Coordinator) also knew about the restructure and that the redundancy of Mrs Farrell's position was imminent because of, for instance, their involvement in discussions concerning an alternative role for Mrs Farrell. Mr Schweizer stated in his evidence that staff made a "collective decision" about Mrs Farrell. Regrettably, Mrs Farrell had no input in that collective decision-making concerning the changes that were presented as a fait accompli. 17 The decision-making concerning the restructure was so definite and its actual implementation so well-advanced that new accounts personnel already were being recruited in Queensland. Even if the witnesses who gave evidence in the proceedings did not know about the advanced state of the restructuring, some employees within Hans's management ranks (either in Sydney or Queensland) clearly knew about the restructure because of the actions that were being taken to recruit new personnel. Neither Ms Taylor nor Ms Wood were called to give evidence even though their evidence would have assisted in clarifying the rationale for the recruitment of the new staff and the timing involved. It seems improbable all the steps that necessarily would have been involved in the appointment of three new accounts staff at the newly-created shared service site in Queensland would have occurred in a decision-making vacuum concerning the need for accounts staff in Blacktown and at other sites such as Wacol. However, Mrs Farrell's first inkling concerning the changes came about as a result of an email advising of the appointment of new accounts personnel in Queensland. Even then, Mrs Farrell was not given a responsive answer when she, not unreasonably, sought advice about the changes. The response she received may be regarded as obfuscating matters. 18 Mrs Farrell was a very well-regarded employee; she was described by managerial witnesses as being "outstanding" and "highly valued". As one managerial witness noted, the company was "extremely keen to keep her in the business" or to retain "the talent". It is regrettable that a long-standing employee who was so highly regarded was not afforded, if nothing else, the basic courtesy of being informed in a timely way of the restructure and impending redundancy of her position. In a real and practical sense, Mrs Farrell was the last person to find out what was happening. Other employees who had been made redundant were given redundancy benefits, but Mrs Farrell found herself in the invidious situation of having to accept a new job she considered unsuitable or, on the other hand, being denied a severance payment. 19 It is similarly regrettable the company did not give any consideration or weight to Mrs Farrell's own wishes concerning her employment. For instance, I accepted the evidence of Mrs Farrell that she would have liked the opportunity to discuss with her family members whether they may wish to relocate to Queensland. Although it was not the company's practice to relocate lower-graded classifications of employees such as Mrs Farrell, she may, for instance, have been prepared to shoulder any relocation expenses. There was evidence of at least one employee who worked in the IT area relocating to Queensland at his own expense. Mrs Farrell felt she had been "just sort of cheated" by not being afforded that opportunity, even though it was probable her children, her eldest son especially, "would have jumped at living in Queensland" and her husband could have advanced his career there. Indeed, Mr Farrell had sometimes suggested that the family might just "pack up and move". In all those circumstances, Mrs Farrell said she "definitely" would have welcomed the opportunity to discuss relocation with her family. 20 To similar effect, the company disregarded Mrs Farrell's own wishes and concerns about the alternative position - a matter which is considered in greater detail in the related decision. The choice the company gave to Mrs Farrell concerning the alternative position was Hobson's choice, that is, the option of taking what was offered or nothing. 21 One can readily appreciate why Mrs Farrell felt she had been poorly treated given the company's handling of her redundancy coupled with foisting a new and unwanted position on her. Mrs Farrell described how she was in a "panic situation ... feeling the pressure of taking another job that I wasn't happy with". Evidence led in the proceedings permitted a finding that Mrs Farrell was, as her advocate submitted, somewhat badgered. Mr Schweizer initially wanted Mrs Farrell to make a decision over a weekend about accepting the alternative position, at a time when Mrs Farrell had not been provided with a job description. Mrs Farrell was telephoned twice while on sick leave in connection with the acceptance of the position. I accepted without hesitation Mr Rasanyakam's evidence that he did not deliberately follow Mrs Farrell to question her about the alternative position; equally, one can also appreciate how Mrs Farrell would have perceived the matter given the encounter that was described in the evidence. Mrs Farrell was also informed (in connection with being told she had 24 hours to reconsider her decision about the Purchasing Officer's role) that the company had "interviewed a number of applicants for the suitable and viable alternative position that has been offered to you". However, there was no evidence to indicate Hans had advertised for any position other than the lower-graded, wages position of Purchasing Clerk. 22 Mrs Farrell knew "plenty" of other employees who had been made redundant, including an employee with whom she had worked closely and who was experienced in purchasing. It seemed a little churlish on the part of the company to require Mrs Farrell to work the bulk of her notice period, when this requirement apparently was not imposed on any other redundant employees who also received redundancy payments denied to Mrs Farrell. Although the company was acting within its rights, albeit in a somewhat discriminatory or selective way, in requiring Mrs Farrell to work the bulk of the period of notice when this requirement was not imposed on other employees, the company had no proper basis for informing Mrs Farrell a severance payment would not be paid because it had offered her an alternative position. 23 In denying Mrs Farrell a redundancy payment, the company asserted in its letter giving notice of termination that it had offered Mrs Farrell a "suitable and viable alternative position". Mr Rodgers submitted the "lure" of a redundancy payment was a motivating factor in rejecting the proposed position. Mr Law, on the other hand, submitted Mrs Farrell was "harassed and hassled" to take an unsuitable position purely and solely so Hans could avoid making a redundancy payment. I do not consider that either scenario describes what unfolded; there were more shades of grey. Mrs Farrell did not want the alternative position because she was genuinely concerned about it, rather than being "lured" by a redundancy payment. On the other hand, the company managers were keen to keep a highly regarded employee and thought she would welcome the "positive" news about the alternative position and promptly accept what was offered to her. There was surprise, and some consternation, when Mrs Farrell did not immediately respond as expected; and the local managers at Blacktown were themselves presumably under some pressure to make the arrangements to comply with the dates for the staffing and work changes that had been determined in Queensland. 24 As to redundancy payments, I note there was no provision within the parties' written contract of employment which permitted the company to withhold a severance payment in circumstances involving an offer of alternative employment. Mr Rodgers submitted, however, the contract of employment's clause concerning severance payments was effectively otiose. The company's case contended the redundancy provisions applicable to Mrs Farrell's employment were those set out in the Clerical and Administrative Employees (State) Award ("the Award"). Given Mrs Farrell's position was made redundant and given also that the company gave notice of termination of employment in its letter dated 31 August 2004, Mrs Farrell was, in my view, presumptively entitled to receive redundancy payments under either her employment contract or the Award. 25 The Award does not permit employers unilaterally to withhold (or reduce) redundancy payments based on their own assessment of the suitability or viability of offers of alternative employment. If the company is correct in its contention Mrs Farrell's employment was covered by the redundancy provisions of the Award, the only way it lawfully could have avoided paying the Award's scale of redundancy payments was by successfully applying to the Commission for an exemption from payment (or a reduction in payment). Such applications relevantly may be made under either s18 of the Act or pursuant to certain mechanisms available under cl39(v)(c) of the Award. The company did not make any such application before advising Mrs Farrell in its letter of termination dated 31 August 2004 that redundancy payments would not be payable nor before such assertions were made to Mrs Farrell during earlier discussions. It was only after Mrs Farrell lodged her unfair dismissal application that the company filed an application seeking an exemption from making a redundancy payment. That application was filed on 22 September 2004 and, as noted earlier, is the subject of a separate decision delivered today. 26 Without making an application and obtaining an exemption from the redundancy provisions of the Award, the company acted peremptorily in informing Mrs Farrell by letter dated 31 August 2004 that a redundancy payment would not be made to her. The company acted in similarly peremptory way on each of the several occasions its managers had previously advised Mrs Farrell in discussions that if she did not accept the alternative position she would not receive a redundancy payment. Shortly stated Mrs Farrell could have expected to receive a redundancy payment given the wording of her letter of employment; otherwise, if the Award applied, Hans was legally bound to make payment unless the Commission made an order exempting from the company from its obligation to make redundancy payments. 27 Mr Rodgers referred to a number of cases in support of his client's contentions, including the recent decision of the High Court in Amcor Limited v Construction, Forestry, Mining and Energy Union [2005] HAC 10. I have considered the cases referred to and the principles they discuss but on the facts of this case, and despite the company's contentions there was a resignation, the evidence makes it clear that Mrs Farrell's position at Blacktown or Mrs Farrell herself, or both, became redundant as a result of the restructuring. This finding is consonant with the advice given to Mrs Farrell on 20 August 2004 and in the letter giving notice of termination of employment dated 31 August 2004. It is also consonant with the evidence describing the factual matrix. The fact is Mrs Farrell's position at Blacktown disappeared as part of the restructure and there was no longer any role of Senior Accounts Payable Clerk available for Mrs Farrell as she was not allowed the opportunity of personally relocating to Queensland along with the relocation of the accounts work. Hans's managers determined how long the company would need Mrs Farrell to work at Blacktown doing accounts and gave notice accordingly; however, the accounts work could have lingered indefinitely as part of the changeover depending on Hans's business exigencies. The company decided to effect the redundancy and the company decided the date the termination of employment would be effected. 28 The question of the offer of alternative employment is a discrete issue from whether there was a redundancy of the old position, but I do not accept the matter can be characterised as a simple refusal of a transfer given the fundamental changes involved and nor do I accept that the termination of employment was initiated by Mrs Farrell rather than the company. The employment relationship as Senior Accounts Payable Clerk may have continued indefinitely and without any alteration (in Blacktown or in Colmslie) had it not been for the actions of the company in restructuring and failing to offer Mrs Farrell the option to relocate to Queensland. Hans, not Mrs Farrell, was the effective initiator of the termination of employment. If it is the case, as the company's submissions contended, that there was no true redundancy as the job itself was simply relocated Queensland, then the corollary would be that Hans advertised the position and filled it whilst Mrs Farrell still held the job or, alternatively, would not let her keep her own job even though she may have had an interest in relocating to Queensland. If it is the case that the company filled Mrs Farrell's job from under her (or sidelined her out of the job so a new employee could be moved in), it would make the company's actions even more susceptible to criticism. 29 It is clear that a redundancy, although a bona fide redundancy, can have the characteristics which support a finding of harsh, unreasonable or unjust dismissal. On a consideration of the evidence and submissions in the matter, I am satisfied the termination of Mrs Farrell's employment was characterised by factors which made it an unfair dismissal. The requisite elements of a dismissal that was harsh, unreasonable and unjust are shown across the evidence, but the principal flaws in the company's approach may be characterised as involving a lack of reasonable, timely or adequate consultation. The company's witnesses thought they were, first, shielding potentially worrying news from Mrs Farrell because the precise date of the changes was not available and, second, keeping the matter from Mrs Farrell so they could plan something positive by way of an alternative position for her - but these considerations did not justify the lack of consultation. As things transpired, the lack of consultation exacerbated the difficulties associated with the changes albeit unwittingly so. Even Hans's best evidence shows its staff knowingly withheld from Mrs Farrell information, when the changes were already well in tow. 30 The urgency with which the company pressed Mrs Farrell for an answer after 20 August 2004 about accepting the alternative position when she had not even been given a job description (including telephoning her on sick leave) may be compared and contrasted with extended timeframe during which the company reasonably could have held discussions and examined options. The company had no proper basis for informing Mrs Farrell in discussions and in its letter of termination dated 31 August 2004 that she would not receive a redundancy payment if she did not accept the alternative position the company was pressing on her. 31 The termination of Mrs Farrell's employment stemmed from a bona fide redundancy. That being said, I am satisfied, nonetheless, that the dismissal by redundancy had characteristics which made it harsh, unreasonable and unjust. Although Mrs Farrell sought 26 weeks' remuneration in relation to the claim for unfair dismissal, it seems to me the company's mishandling of the process of effecting the redundancy should attract only a comparatively small order for compensation in this case. In determining that three weeks' compensation should be ordered, I have taken into account the unsuccessful outcome of the company's application in the related proceedings seeking exemption from making a redundancy payment to Mrs Farrell. That is, the combined effect of the decisions is that Mrs Farrell will receive a redundancy payment and a further three weeks' compensation. Were it not for the fact of the redundancy payment, I would have ordered a larger amount of compensation. In determining that three weeks' remuneration at $809.62 a week should be ordered, I also have taken into account the evidence as to matters required to be considered by s89(6) of the Act. 32 Lastly, given Mrs Farrell's evidence as to her termination of employment in connection with an absence on maternity leave, I recommend that Mrs Farrell's service accumulated before the maternity leave-related absence be re-credited to her for long service leave purposes. In making this recommendation, I note that in 1994 when Mrs Farrell took maternity leave, s27 and s39 of the Industrial Relations Act 1991 would have been in effect (now replicated in the current Act). I also note Mrs Farrell may be entitled under the Act to seek recovery of any entitlement in alternative proceedings. It would appear appropriate, now that the company's notice has been drawn to the apparent underpayment as a result of the evidence adduced in the proceedings, that rectification occur without the need for Mrs Farrell to initiate additional legal proceedings.

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