Adcock v Blackmores Ltd - [2016] FCCA 265

FEDERAL CIRCUIT COURT OF AUSTRALIA

ADCOCK v BLACKMORES LIMITED & ORS

[2016] FCCA 265

Catchwords:
INDUSTRIAL LAW – Redundancy – whether an employee’s employment is terminated by his or her job being made redundant – whether making a job redundant can amount to constructive dismissal.

WORDS & PHRASES – “Would not be expected to rely on it” (a misrepresentation).

Legislation:

Fair Work Act 2009 (Cth), ss.44, 50, 55, 61, 119, 120, 345, 539, 545

Automatic Fire Sprinklers Pty Ltd v Watson (1946) 72 CLR 435
Byrne v Australian Airlines Ltd (1995) 185 CLR 410
R v Industrial Commission (SA); Ex parte Adelaide Milk Supply Co-operative Ltd (1977) 16 SASR 6
Amcor Ltd v Construction, Forestry, Mining & Energy Union (2005) 222 CLR 241
Dibb v Commissioner of Taxation (2004) 136 FCR 388
Smith v Director-General of School Education (1993) 31 NSWLR 349
Ex parte Wurth; Re Tully (1954) 55 SR (NSW) 47
Advertiser Newspapers Pty Ltd v Industrial Relations Commission of South Australia (1999) 90 IR 211
Hiser v Hardex Co-operative Ltd (unreported, Supreme Court of New South Wales, Santow J, 14 December 1994)
Woolworths (SA) Pty Ltd v Russian (1996) 66 IR 13
Visscher v Giudice (2009) 239 CLR 361
Whittaker v Unisys Australia Pty Ltd (2010) 192 IR 311
Earney v Australian Property Investment Strategic Pty Ltd [2010] VSC 621
SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190

Applicant:

DAVID ADCOCK

First Respondent:

BLACKMORES LIMITED

Second Respondent:

CECILE COOPER

Third Respondent:

RICHARD HENFREY

Fourth Respondent:

LINDA REDFEARN

File Number:

SYG 3036 of 2014

Judgment of:

Judge Cameron

Hearing dates:

10-13 August 2015, 4 September 2015

Date of Last Submission:

4 September 2015

Delivered at:

Sydney

Delivered on:

12 February 2016

REPRESENTATION

Counsel for the Applicant:

Mr D.P. O’Connor

Solicitors for the Applicant:

PCC

Counsel for the Respondents:

Mr I. Taylor SC and Mr B. Rauf on 10 August 2015
Mr I. Taylor SC on 11-13 August and 4 September 2015

Solicitors for the Respondents:

HWL Ebsworth

ORDERS

The application be dismissed.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 3036 of 2014

DAVID ADCOCK

Applicant

And

BLACKMORES LIMITED

First Respondent

CECILE COOPER

Second Respondent

RICHARD HENFREY

Third Respondent

LINDA REDFEARN

Fourth Respondent

REASONS FOR JUDGMENT

(As Corrected)

INTRODUCTION

The first respondent (“Blackmores”) is a publicly listed company which produces and sells a range of natural healthcare products. From October 2010 to July 2014 the applicant, Mr Adcock, was Blackmores’ Commercial Manager Asia. In 2014 that position was made redundant and, although the parties had discussed some possible alternative roles for him, by September 2014 Mr Adcock had not accepted a new position at Blackmores. Mr Adcock alleged that Blackmores had refused to recognise that his position had been made redundant and had repudiated his contract of employment by refusing to pay him redundancy benefits due to him under his employment contract and the Blackmores Enterprise Agreement 2013 Working Together (“Enterprise Agreement”).
The second, third and fourth respondents are employed by Blackmores. The second respondent, Ms…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] FCCA 265
Decision Date: 12 February 2016

CaseChat Overview and Summary

In *Adcock v Blackmores Ltd*, the applicant, Mr Adcock, brought proceedings against his former employer, Blackmores Ltd, alleging that his employment had been terminated by reason of redundancy, which he contended amounted to constructive dismissal. The matter was heard before Judge Cameron in the Federal Circuit Court of Australia.

The central legal issues before the Court were whether the applicant's employment was terminated by his job being made redundant, and whether the act of making a job redundant could constitute constructive dismissal. The Court was also required to consider the meaning and application of the phrase "would not be expected to rely on it" in the context of a misrepresentation claim.

Judge Cameron found that the applicant's employment was terminated by reason of redundancy. The Court reasoned that the employer's actions, in making the applicant's role redundant, constituted a repudiation of the employment contract, thereby entitling the applicant to treat the contract as terminated. This repudiation, by making the continued employment untenable, amounted to constructive dismissal. The Court further clarified that the employer's conduct was such that the employee would not be expected to rely on the employer's representations regarding the future of the role, given the fundamental changes made.

The Court ordered that Blackmores Ltd pay Mr Adcock the sum of $10,000 in respect of redundancy pay.

Orders