Adcock v Blackmores Ltd
[2016] FCCA 265
•12 February 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ADCOCK v BLACKMORES LIMITED & ORS | [2016] FCCA 265 |
| Catchwords: 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 Cooper, is Blackmores’ Company Secretary, the third respondent, Mr Henfrey, is Blackmores’ Chief Operating Officer (“COO”), and the fourth respondent, Ms Redfearn, is Blackmores’ Head of Human Resources. Mr Adcock alleged that as representatives of Blackmores, they had breached s.345 of the Fair Work Act 2009 (“FW Act”) by knowingly or recklessly making false or misleading representations concerning his workplace rights, namely that he was not entitled to redundancy pay under the Enterprise Agreement.
ALLEGATIONS
Contract of employment
Mr Adcock alleged that his position of Commercial Manager Asia was subject to a contract of employment, the terms of which were partly express and partly implied. He alleged that the express terms of the contract were set out in:
a)two letters dated 29 September 2003 and 1 October 2010 or, alternatively, in a letter dated 17 March 2008; and
b)the Enterprise Agreement.
Mr Adcock alleged that it was an implied term of his contract that Blackmores would perform obligations and exercise rights and decisions under the contract:
a)in good faith;
b)reasonably;
c)with proper regard to his interests;
d)in a manner that was not capricious, arbitrary or unreasonable; and
e)fairly and impartially.
Redundancy
Mr Adcock alleged that at a meeting on 4 July 2014 he was informed that his position of Commercial Manager Asia would be made redundant and that from then until early September 2014 he consulted with Blackmores over alternative roles to which he might be redeployed. Mr Adcock alleged that he did not accept any of the positions which were offered to him and, as a consequence, his employment was redundant in accordance with cls.38.1(a) and 38.2(e) of the Enterprise Agreement.
Mr Adcock alleged that under the Enterprise Agreement he was entitled to accept or reject alternative employment offered to him by Blackmores and was entitled to receive redundancy pay because he did not accept any of the alternative positions offered to him.
Mr Adcock alleged that it was an express term of his contract of employment that he was entitled “upon termination” to five weeks’ notice of termination and to redundancy pay in accordance with the Enterprise Agreement.
Repudiation
Mr Adcock alleged that on or around 1 and 4 September 2014 he informed Blackmores that he would not be accepting any of the alternative positions suggested to him as redeployment options and requested a calculation of his pay in lieu of notice and redundancy pay.
As noted earlier, Mr Adcock alleged that Blackmores breached his contract of employment by refusing to recognise that his role had been made redundant and by refusing to recognise that he was entitled to “payment for notice” and redundancy pay in accordance with the Enterprise Agreement. He alleged that, as a result, his contract of employment was repudiated by Blackmores.
Breaches of the Enterprise Agreement
Mr Adcock alleged that Blackmores breached the Enterprise Agreement, and therefore s.50 of the FW Act, by failing to pay him his “outstanding notice” and redundancy pay.
Misrepresentations
Mr Adcock alleged that he had had a workplace right to receive notice and redundancy pay under the Enterprise Agreement. He alleged that Blackmores, through one or more of its representatives Ms Cooper, Mr Henfrey and Ms Redfearn, knowingly or recklessly made false and misleading representations to him concerning his workplace rights to the effect that:
a)senior employees often found it more difficult to have redundancies awarded in the courts; and
b)he was not entitled to receive “notice” or redundancy pay under the Enterprise Agreement due to an express term of his contract of employment which set out that his duties could be varied from time to time.
Orders sought
Mr Adcock sought compensation in the following amounts:
a)$114,169.62, representing thirty-two weeks’ redundancy pay;
b)$17,839, representing five weeks’ pay in lieu of notice; and
c)$12,540.82, representing superannuation “owing for redundancy and notice pay”.
He also sought orders imposing pecuniary penalties on the respondents for their alleged misrepresentations and contraventions of the Enterprise Agreement.
RESPONSE
The respondents denied that Blackmores had terminated Mr Adcock’s employment. They alleged that following the restructure of its Asia operations, Blackmores had consulted with Mr Adcock over how his duties would be restructured. They alleged that Mr Adcock had terminated his employment during that period of consultation. The respondents alleged that it was a condition precedent to an entitlement to a redundancy payment that the relevant employee’s employment be terminated by Blackmores for reason of redundancy. They alleged that Mr Adcock’s employment had not been so terminated.
The respondents alleged that as Blackmores had not terminated Mr Adcock’s employment on the grounds of redundancy or otherwise, the requirement to give notice or make a redundancy payment under cl.38 of the Enterprise Agreement did not arise.
RELEVANT LEGISLATION
Fair Work Act
Section 44(1) of the FW Act provides that a person must not contravene a provision of the National Employment Standards (“NES”).
Section 50 of the FW Act provides that a person must not contravene a term of an enterprise agreement.
By virtue of s.61(3) of the FW Act, ss.119 of the FW Act is a provision of the NES. It relevantly provides:
119 Redundancy pay
Entitlement to redundancy pay
(1) An employee is entitled to be paid redundancy pay by the employer if the employee’s employment is terminated:
(a) at the employer’s initiative because the employer no longer requires the job done by the employee to be done by anyone, except where this is due to the ordinary and customary turnover of labour; or
(b) because of the insolvency or bankruptcy of the employer.
Amount of redundancy pay
(2) The amount of the redundancy pay equals the total amount payable to the employee for the redundancy pay period worked out using the following table at the employee’s base rate of pay for his or her ordinary hours of work:
Redundancy pay period Employee’s period of continuous service with the employer on termination Redundancy pay period ... ... ... 9 At least 9 years but less than 10 years 16 weeks 10 At least 10 years 12 weeks
Section 120 of the FW Act provides:
120Variation 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.
Section 345 provides:
345 Misrepresentations
(1) A person must not knowingly or recklessly make a false or misleading representation about:
(a) the workplace rights of another person; or
(b) the exercise, or the effect of the exercise, of a workplace right by another person.
(2) Subsection (1) does not apply if the person to whom the representation is made would not be expected to rely on it.
Sections 44(1), 50 and 345(1) are civil remedy provisions breach of which can attract pecuniary penalties: s.539 FW Act. Section 545(2)(b) of the FW Act provides that the Court may award compensation for loss suffered because of a contravention of a civil remedy provision.
Enterprise Agreement
Relevant clauses of the Enterprise Agreement are set out below:
36. TERMINATION OF EMPLOYMENT
36.1If Blackmores terminates an employee’s employment the employee is entitled to a 4 weeks’ notice period, except for the Executive Team who are entitled to 3 months’ notice.
36.2The period of notice will be increased by 1 week if the employee is over 45 years old.
36.3As an alternative to giving the period of notice Blackmores may terminate the employment of an employee by giving the employee a payment wholly or partly in lieu of the period of notice.
…
38. REDUNDANCY
38.1This clause applies only in the circumstances where Blackmores terminates an employee’s employment due to redundancy. A redundancy takes place when:
(a)Blackmores has made a definite decision that it no longer wishes the job the employee has been doing to be done by anyone; and
(b)the decision is not due to the ordinary and customary turnover of labour; and
(c)that termination of employment is not for reasons of any personal act or default on the part of the employee.
38.2This clause does not apply:
…
(e)where Blackmores obtains, and the employee accepts, alternative employment for the employee;
…
38.3Where Blackmores has made a definite decision that it no longer wishes the job the employee has been doing to be done by anyone, and that decision may lead to the termination of employment, Blackmores will discuss this with the employee as soon as practicable after the making of the definite decision.
(a) The discussion will cover:
(i) the reason(s) for the proposed termination;
(ii) the period over which the termination is likely to be carried out;
(iii) measures to avoid or minimise the termination; and
(iv) measures to mitigate any adverse effects on the termination of the employee.
(b)During discussion with the employee, Blackmores is not required to disclose confidential information if the disclosure would adversely affect Blackmores.
38.4Employees are entitled to redundancy payments in accordance with the provisions of the Fair Work Act. However where an entitlement to redundancy arises under the Fair Work Act the severance payment applicable in the Fair Work Act is substituted with more generous payments outlined below:
Employee’s continuous service with the Company
Severance pay
…
…
9 years and more but less than 10 years
29 weeks’ pay
For each completed year of service following the 10th year, an employee is entitled to an additional 3 weeks’ pay. This is capped at a maximum of 52 weeks’ pay. …
Contract
Mr Adcock’s initial employment contract dated 22 September 2003 provided:
3.Position and duties
You are employed on a full-time basis as the Trade Marketing Manager. You will report to the Director of Sales. As this position is currently vacant you will report to the manager of our Business Solutions Group ... The duties and responsibilities of your position are set out in the attached Position Description.
You may also be asked to perform other tasks or duties that are within your training and skills.
Your position and responsibilities may change during your employment.
…
12.Termination of employment and return of Company property
…
(d)Should your position be made redundant, Clause10 of the Agreement will apply.
Clause 10 of the Blackmores Certified Agreement 2003 provided for redundancy in terms similar to cl.38 of the Enterprise Agreement.
In 2008 Mr Adcock was appointed as Blackmores’ permanent General Manager in Thailand and was issued with a new contract which, similarly to his earlier contract, stated that he might be asked to perform other tasks or duties that were within his training and skills, that his position and responsibilities might change from time to time and that cl.29 of the Blackmores Collective Agreement 2006 applied in the event that “your employment ends because your position becomes redundant”. Clause 29 of the Blackmores Collective Agreement 2006 also provided for redundancy in terms similar to those of cl.38 of the Enterprise Agreement.
Mr Adcock’s evidence was that when he was subsequently appointed to other positions, he was provided with letters stating that the terms and conditions of his employment remained the same.
BACKGROUND
The evidence demonstrated that Mr Adcock’s position of Commercial Manager Asia was made redundant because it was abolished, as part of a corporate restructure known as the Asia Hub project, and its functions and duties distributed elsewhere. The evidence also demonstrated that Blackmores offered Mr Adcock a number of alternative positions, none of which he accepted. In cross-examination Mr Adcock accepted that Blackmores had tried to retain his services.
Much of the evidence in the case concerned what information was supplied to Mr Adcock at various times before 4 July 2014, how he felt he was treated by Blackmores, his exploration of alternative employment outside Blackmores and Blackmores’ motivation for offering him alternative positions. In my view, while providing some insights into the deterioration of the relationship between Mr Adcock and Blackmores and into the parties’ case theories, those matters were not relevant to the issues requiring determination. Consequently, the remainder of these reasons largely omits reference to them.
APPLICANT’S EVIDENCE
David Adcock
Background
Mr Adcock commenced work with Blackmores in September 2003 and in October 2010 he was appointed Commercial Manager Asia. In August 2013 he moved to Korea to act as Country Manager Korea but his substantive position remained Commercial Manager Asia. Mr Adcock returned to Australia in July 2014.
Redundancy of Commercial Manager Asia role
Mr Adcock deposed that on 4 July 2014, while at a conference in Malaysia, he had a meeting with Ms Holgate, Blackmores’ Chief Executive Officer, and Mr Osborne, Blackmores’ Director Asia, and was told that the role of Commercial Manager Asia no longer existed and was invited to apply for the new role of Financial Controller, reporting to the Chief Financial Officer Asia (“CFO Asia”). Mr Adcock deposed to having replied that he was not interested in the suggested role.
On 9 July 2014 Mr Adcock sent an email to Ms Holgate stating that he was interested in roles related to processes and internal management reporting, specifically roles in category development and trade marketing. He stated that his preference was a role based in Sydney, acting as a conduit between the Asia Hub and the Sydney head office. In a response on 10 July 2014, Ms Holgate advised that such a role did not exist and so was “not an option at present”.
Mr Adcock returned to work at Blackmores’ Sydney offices on 21 July 2014. He deposed that in a meeting that day Mr Last, Blackmores’ Chief Financial Officer, confirmed that the Commercial Manager Asia role no longer existed and suggested that he meet with various members of the Executive Team to try to identify another suitable position. Mr Last also said that Mr Adcock could still apply for the Financial Controller role if he changed his mind about it.
Attempts at redeployment
Initial offers
Mr Adcock deposed that the first potential alternative position which was discussed with him was the Financial Controller role raised at his meeting with Ms Holgate and Mr Osborne on 4 July 2014. On 19 July 2014 Mr Adcock also received an email from Ms Holgate in which she suggested that he might be interested in a project preparing a more structured process to review Blackmores’ business units.
Mr Adcock deposed that in early August 2014 he met with Richard Stevens, Blackmores’ Program Management Officer, and with David Fenlon, the Managing Director Team Australia, but found no appropriate roles in their departments. He deposed that on 12 August 2014 he met with Mr Henfrey who offered him a six to twelve month project role managing the integration of the Asia Hub within the Asian markets. Mr Adcock deposed that he met with Barry Wong, Head of Corporate Development, on 13 August 2014 but advised him that he was not prepared to commence the project until he had had an opportunity to clarify his position.
On 14 August 2014 Mr Adcock went on a short period of annual leave. He obtained legal advice on his entitlements, including redundancy entitlements, before doing so.
On 25 August 2014, following his return from leave, Mr Adcock met with Mr Henfrey and advised him that none of the suggestions put to him interested him. Mr Adcock deposed that they then had the following exchange:
Mr Adcock:… if an appropriate role cannot be found, then I would like to discuss the prospect of redundancy. As my role no longer exists, I believe that is grounds for redundancy. My understanding is that our Enterprise Agreement accommodates such a situation. Could you please show me the payment calculations relating to the redundancy of my role?
Mr Henfrey: I don’t think that is correct. Although that role no longer exists, I believe that if you are offered an alternate role with similar conditions then redundancy would not kick in … I’ll confirm that with Linda and Chris.
Business Implementation Manager role
On 29 August 2014 Mr Last and Ms Redfearn invited Mr Adcock to consider a new position of Business Implementation/Transition Manager – Asia. Mr Adcock decided that it was not a role he was interested in as it was finance-based and not sales and category-focused and he believed that it would face significant challenges within the business and would not be adequately valued. Mr Adcock deposed that on 1 September 2014 he advised Ms Redfearn and Mr Last of his lack of interest in the role and once again expressed his belief that he was entitled to “redundancy”. He deposed that in response Ms Redfearn said:
We have tried very hard to find you an alternate role within the business. Redundancy is not on the table. As we have offered you roles with similar conditions and seniority, redundancy does not apply. That is why this case is not covered by the Enterprise Agreement. We are not open to considering redundancy at all.
Mr Adcock deposed that later on 1 September 2014 he met with Ms Cooper and again expressed his belief that he was entitled to a redundancy under the Enterprise Agreement. Mr Adcock deposed that in response Ms Cooper said:
I am putting on my legal hat and have to let you know we do not agree with your position at all. If you go to court the company can show they did not want to make you redundant as they have offered you a similar role. Redundancy is really less likely to apply to senior managers. You should therefore reconsider the role offered to you.
…
I hope you are getting sound legal advice because this could be very expensive for you. Blackmores does not want to lose you and does not want to make you redundant. Why don’t you take the role and then if you want to you can look for another role. It is much easier to find a role while employed rather than being unemployed.
Mr Adcock agreed that at this meeting, as at other meetings, he had made it clear that he had received his own advice which was different from the views expressed on behalf of Blackmores.
Mr Adcock deposed that he met once more with Mr Henfrey and Ms Redfearn on 4 September 2014 and, having received confirmation that his Commercial Manager Asia role no longer existed, queried why he was not entitled to “a redundancy”. He deposed that Ms Redfearn replied that the letter of offer given to him when he first commenced work permitted Blackmores to vary his role. At that meeting, Mr Henfrey handed to Mr Adcock a letter dated 2 September 2014 which set out Blackmores’ account of the attempts made to find him a suitable position. In part, the letter stated:
Following the restructure of our Asia operations on 1 July 2014, components of your prior role (Commercial Manager, Asia) have been relocated to be conducted by the new Asian Finance team in Singapore.
This is a change to the business that has been well flagged for many months, and was communicated to you prior to you taking on the temporary role in Korea. However, this does not mean that there is no position for you upon your return to Blackmores in Australia. Rather, we have reviewed the duties of your prior position and can see that there are similar duties required in the role of Business Implementation and Transition Manager Role – Asia….
I note that Blackmores’ restructure of your Commercial Manager, Asia position into a Business Implementation and Transition Manager – Asia role is permitted by your contract of employment …
Please take some time to review this letter. The restructure to your role has been completed effective immediately, however, we are willing to allow you until 5 September 2014 to respond that you have accepted the role as the Business Implementation and Transition Manager – Asia.
Mr Adcock deposed that he considered this letter to be an ultimatum. In an email response on 5 September 2014 he disputed that the duties of the Business Implementation Manager role were similar to those of the Commercial Manager Asia. Mr Adcock deposed that on the same day he also met with Mr Henfrey and advised him that after reviewing its position description he was not prepared to accept the Business Implementation/Transition Manager – Asia role. He deposed that at a meeting later that day he once again queried why “the conditions of the Enterprise Agreement [did] not apply” and made it clear that legal advice he had received was inconsistent with Blackmores’ interpretation of the situation.
Termination
Mr Adcock deposed that on the morning of 9 September 2014 he met with Ms Cooper and Mr Henfrey at which time Mr Henfrey advised him of a new role assisting the CFO Asia with the migration of various functions and processes to the Asia Hub. He deposed that Mr Henfrey asked him to meet with Mr Last to draft a role description and said:
This situation needs to come to an end and you need to get on to some work.
Mr Adcock deposed that on the afternoon of 9 September 2014 he met with Mr Last and said:
Blackmores has made my role of Commercial Manager, Asia redundant. I have tried, with Blackmores’ assistance to find a new role. I have not been able to find an acceptable role therefore in accordance with the Enterprise Agreement I have requested that I be paid my notice and redundancy pay. Blackmores have refused to do so and have therefore repudiated my contract of employment. As a result of this I will be leave [sic] the office today and will not be returning.
Mr Adcock deposed that he also handed a letter to Mr Last which essentially repeated in writing what he had said. Specifically, it said:
I have considered a number of available positions at Blackmores for potential redeployment. Unfortunately, despite carefully considering all of the options, there are no suitable alternative positions for me.
The Blackmores Enterprise Agreement 2013: Working Together sets out that if I do not accept alternative employment offered to me that I am entitled to redundancy pay (clause 38.2(e)).
I sought to discuss the redundancy of my position and the resulting redundancy pay with you late last week. However, Blackmores has refused to recognise that my position has been made redundant or that I am entitled to redundancy pay in accordance with the Enterprise Agreement. Blackmores has instead argued that the Enterprise Agreement does not apply because they do not want to make me redundant, despite my position no longer existing.
I have been quite dismayed by the approach taken by Blackmores … in refusing to recognise my entitlement to redundancy pay. I genuinely do not understand why you are asserting that my position is not redundant.
Blackmores has by its actions, outlined above, repudiated my contract of employment. Accordingly I will no longer be attending the office for work as I have been terminated by Blackmores. I expect to receive full payment of my statutory and Enterprise Agreement entitlements within 7 days of receipt of this letter including 35 weeks redundancy pay, 5 weeks payment in lieu of notice, accrued long service leave and annual leave.
Mr Adcock deposed that Mr Last left the room and returned with Ms Cooper and that they had the following conversation:
Ms Cooper:I hope you have thought carefully about this. You are resigning.
Mr Adcock:No I am not resigning. Blackmores have repudiated my contract.
Ms Cooper:We are slotting you straight back into your old role. You are abandoning your role despite getting the same role back.
Mr Adcock:I disagree with you completely. It is not the same role and I have been told repeatedly that my old role no longer exists. Shall I return my property now?
Ms Cooper:No keep the property. You’ve got a role here so you should keep it. If you leave your tools of trade you cannot do your role and you are resigning.
Mr Adcock: I am not resigning. As I have stated previously, Blackmores have repudiated my contract. …
Mr Adcock deposed that he had left the office after that meeting and did not return to work at Blackmores.
Mr Adcock deposed that on 10 September 2014 he received at his home a letter from Mr Henfrey dated 9 September 2014. The letter relevantly stated:
From Blackmores’ perspective you have chosen to leave the building this afternoon even though your employment has not been terminated.
I reiterate that Blackmores has no intention to terminate your employment. Rather, Blackmores has the position of Commercial Manager available for you to perform.
Despite your actions this afternoon, Blackmores is willing to allow you to return to work tomorrow to continue your employment with Blackmores as Commercial Manager.
In these circumstances, should you not present for work tomorrow without reasonable excuse, we will be left with no option but to treat your actions as a resignation and you will be paid your statutory leave entitlements within 7 days.
Mr Adcock said that the Financial Controller and Business Implementation/Transition Manager – Asia jobs offered to him were not less well remunerated than his redundant position and did not describe the job assisting the CFO Asia offered to him on 9 September 2014 as being less well remunerated. However, he said that his “hand was forced” because Blackmores did not offer him a role he wished to accept. He conceded that each of the three offers he received was a genuine offer of a position he could have filled. He said that the fact that a role might have been ongoing did not mean that it provided what he was looking for or was the best use of his skills.
RESPONDENTS’ EVIDENCE
Christine Holgate
Ms Holgate is Blackmores’ Chief Executive Officer and Managing Director and deposed that on 1 July 2014 Blackmores established an Asia Pacific regional head office in Singapore which was the culmination of the Asia Hub project. Ms Holgate deposed that in early July 2014, while attending a regional sales conference in Malaysia, she met with Mr Adcock and discussed his return to Australia, inviting him to apply for the role of Group Financial Controller. Ms Holgate deposed that the following conversation ensued:
Mr Adcock:Well I’m not interested in the role, I would like to take a Category Manager role for Asia region, based in Sydney but supporting the countries in Category Management.
Ms Holgate:That role doesn’t exist. It goes against the strategy of the business and we do not have a budget for it.
Mr Adcock:I would go into the Asian businesses and support them. I want to be based in Sydney but travel to the region.
Ms Holgate:Well that is totally the opposite of what we are doing which is to move resources into the region. Do you think the Country Managers would be prepared to fund it? If you want another job in the region we can certainly look at that. If you want a job in Sydney I am happy to explore that. Why don’t you send me a summary of your CV, particularly focusing on your strengths and I will try and help you.
Ms Holgate deposed that in July 2014 she and other members of Blackmores’ senior management team had email exchanges with Mr Adcock about his return to Sydney and his future role. She deposed that in those emails Mr Adcock sought a Category Manager role which did not exist in Sydney and was already located in the Asian region. Ms Holgate deposed that on 19 July 2014 she emailed Mr Adcock inviting him to work directly with her on some projects but he never responded to that offer.
Ms Holgate deposed that on Mr Adcock’s return to Sydney, she directed Mr Henfrey, to whom the Asia Hub reported, to take the lead in consulting with Mr Adcock concerning his redeployment. She deposed that Mr Henfrey had updated her from time to time and had initially reported that there were some prospective opportunities for Mr Adcock, particularly in relation to the implementation of the Asia Hub.
Cecile Cooper
Ms Cooper is Blackmores’ Company Secretary. She deposed that given Mr Adcock’s experience and skillset, she had been keen for him to remain with Blackmores to assist in implementing the Asia Hub project from a governance and financial control perspective. She did not dispute the words attributed to her in her meeting with Mr Adcock on 1 September 2014 but deposed that Mr Adcock had wanted her to talk to his legal advisers because he could not understand why Blackmores did not view him as being redundant. She was not cross-examined on the latter evidence.
Linda Redfearn
Ms Redfearn is the Head of Human Resources at Blackmores. She deposed that Blackmores recognised that it has a duty to seek suitable alternative work when an employee’s job no longer exists or substantially changes. She deposed that during redeployment processes employees also had a responsibility to co-operate in the identification of new opportunities and to accept reasonable requests for training and skills development. She deposed that, wherever possible, Blackmores sought suitable alternative work on comparable terms and conditions within a reasonable period of time, usually three months.
Attempts at redeployment
Initial offers
Ms Redfearn deposed that on 6 July 2014 she received an email from Mr Adcock in which he asked her to confirm that his Commercial Manager Asia role no longer existed. The next day Ms Redfearn and Mr Last had a telephone meeting with Mr Adcock during which they discussed a number of options for Mr Adcock including the Financial Controller role, an Asian region role based in Sydney or an expatriate role in Singapore. Ms Redfearn deposed that they also discussed Mr Adcock meeting with members of the Executive Team to discuss possible opportunities in Sydney.
Ms Redfearn deposed that on 21 July 2014, Mr Adcock’s first day back at the Sydney office, she had coffee with him and checked on his wellbeing and discussed his return home from Korea. Ms Redfearn deposed that on his return Mr Adcock had continued to work on the Korean business whilst also exploring redeployment opportunities. She deposed that Mr Adcock had also been referred to Career Capital, a human resources consulting firm, to help him identify his skills and how they could be used to identify an appropriate role and help him be more open-minded about redeployment opportunities.
Business Implementation Manager role
On 29 August 2014 Ms Redfearn and Mr Last met with Mr Adcock and offered him a Business Implementation Manager role managing the second phase of the Asia Hub project. Ms Redfearn deposed that that role had been partly developed having regard to Mr Adcock’s expressed wishes as to the role he was seeking. She disagreed with Mr Adcock’s view that the role had been inconsistent with his skills and previous roles.
On 1 September 2014 Mr Adcock met again with Ms Redfearn and Mr Last and refused the Business Implementation Manager role. Ms Redfearn deposed that she had been confused by Mr Adcock’s introduction of redundancy pay at that meeting, particularly as the meeting had been about a role which had been formulated to meet his specifications. She deposed that the redeployment process had not yet been completed and she had been committed to working with Mr Adcock to explore all the opportunities fully. She deposed that she had not absolutely ruled out the possibility of redundancy but as the redeployment process had not yet concluded, she had said it was not being considered at that time.
Ms Redfearn deposed that she met with Mr Adcock and Mr Henfrey on 2 September 2014 to discuss the Business Implementation Manager role further. She deposed that at a subsequent meeting between them on 4 September 2014 she was surprised, following previous positive discussions about the role, that Mr Adcock raised the issue of redundancy payments again. She deposed that following the meeting, she photocopied the section of Mr Adcock’s contract which provided for Blackmores’ right to vary his role and provided it to him.
Mr Adcock’s resignation
Ms Redfearn deposed that Mr Adcock had been valuable to Blackmores and at no point in the redeployment process had there been a desire to terminate his employment. She deposed that at significant cost Blackmores had ultimately engaged three contractors to perform the Asia Hub transition work for which Mr Adcock had been properly qualified. She deposed to her belief that Mr Adcock’s pre-existing business relationships would have allowed for a smoother transition. She deposed that Blackmores had also engaged a contractor to carry out residual functions which had not been handed over to the CFO Asia.
Richard Henfrey
Mr Henfrey is Blackmores’ COO.
Attempts at redeployment
Mr Henfrey deposed that on 14 August 2014 he met with Mr Adcock to offer him an interim project position managing phase two of the Asia Hub project. He deposed that at the meeting, although he was concerned about certain aspects of it, Mr Adcock expressed interest in the role and agreed to meet with Mr Wong to discuss it further.
Requests for redundancy payment
Mr Henfrey deposed that on Mr Adcock’s return from annual leave on 25 August 2014 he noticed a distinct difference in his attitude in that he seemed closed off, negative and not open to discussion about his future with Blackmores. Mr Henfrey deposed that when they met on 25 August 2014, Mr Adcock said that he was not interested in the Asia Hub project role. Mr Henfrey deposed that when he suggested that Mr Adcock continue to work with Mr Wong to understand the project role while other options were considered, Mr Adcock said that he had been advised to not participate in the project or to continue to discuss it with Mr Wong. Mr Henfrey deposed that Mr Adcock then raised the issue of redundancy pay. He deposed that in response he said:
I don’t think we’re at that stage yet. We want to find you another role.
Mr Henfrey deposed that on 27 August 2014 he had a meeting with Mr Last and Mr Osborne during which they discussed Mr Adcock’s request for “a redundancy”. He deposed that they determined that there was a genuine need for a specialist implementation manager to lead the transition of certain finance, operational and support functions to the Asia Hub following some teething problems with the project. Mr Henfrey deposed that given the genuine need for the role and its close match with Mr Adcock’s skills, they decided to refuse Mr Adcock’s request for a redundancy and continue with the consultation and redeployment process.
Business Implementation Manager role
On 2 September 2014 Mr Henfrey and Ms Redfearn met with Mr Adcock to offer him the Business Implementation Manager role. Mr Henfrey deposed that as discussions with Mr Adcock about project work had been unsuccessful, he had felt that it was important to place him in a permanent role. He deposed that while the Business Implementation Manager role had not been long-term, it had been permanent in the sense that it would have been required for eighteen to twenty-four months. Mr Henfrey deposed that a contractor was ultimately appointed for that period of time.
Mr Henfrey deposed that when he met with Mr Adcock on 3 September 2014 to discuss the proposed role, Mr Adcock seemed to have resumed a genuine interest in remaining employed with Blackmores. Following that meeting a position description was developed, approved and emailed to Mr Adcock. Mr Henfrey deposed that when he next met with Mr Adcock on 4 September 2014, Mr Adcock again raised the issue of “redundancy” and at a further meeting on 5 September 2014 advised that he was not interested in the Business Implementation Manager role. Mr Henfrey denied having attempted to coerce Mr Adcock at the 5 September 2014 meeting to accept the role.
Commercial Manager role
Mr Henfrey deposed that following Mr Adcock’s refusal of the Business Implementation Manager role, he and Ms Cooper sought and received Ms Holgate’s approval to create a Commercial Manager position reporting to the Chief Financial Officer. Mr Henfrey deposed he offered the role to Mr Adcock on the morning of 9 September 2014.
Mr Adcock’s resignation
Mr Henfrey deposed that he was surprised when Ms Cooper advised him by email later on 9 September 2014 that Mr Adcock had claimed that Blackmores had repudiated his contract and had left the building. He deposed that he wrote to Mr Adcock later that day confirming that the Commercial Manager role was available and on that basis his employment had not been terminated. The letter also stated that if Mr Adcock failed to return to work without a reasonable excuse then his actions would be treated as a resignation. Mr Henfrey deposed that when Mr Adcock did not return to work, his termination entitlements were processed.
Barry Wong
Mr Wong is Blackmores’ Head of Corporate Development and in that role is responsible for its growth strategy. Mr Wong deposed that on 13 August 2014 he had a meeting with Mr Adcock to discuss how the latter could be involved in the Asian Hub project. He deposed that the purpose of the meeting was to brief Mr Adcock on the progress of the project and what it involved. Mr Wong deposed that on 12 and 13 August 2014 Mr Adcock also attended induction meetings with the new CFO Asia, and a further implementation team information session on 14 August 2014.
DISCUSSION
Evidence
It appeared to me that all the witnesses were attempting to give their best recollection of events. To the extent that there was disagreement on certain points, it is generally not necessary to resolve those disagreements to determine this case. This is because, apart from evidentiary differences concerning the misrepresentations alleged by Mr Adcock, only a handful of facts were genuinely significant and they were agreed or conceded. Specifically, it was agreed that Mr Adcock’s position of Commercial Manager Asia had been made redundant and that his claim for a redundancy payment was governed by the terms of the Enterprise Agreement. It was also agreed that Blackmores offered Mr Adcock a number of alternative positions which he declined but which he conceded were genuine offers of jobs which he could have performed.
Deficiencies in the response
In his written submissions, Mr Adcock complained that the respondents had failed to identify the true nature of their defence until they served their written submissions following the closure of the parties’ cases. He said it was only then that the respondents revealed that their principal defence was that an entitlement to redundancy pay under the Enterprise Agreement arose only if the employment in question was terminated at Blackmores’ initiative. He argued that if the respondents wished to rely on that allegation, a further amendment of the response was necessary. In a ruling on 4 September 2015 I rejected that submission. In the event that an analysis more detailed that the ex tempore reasons I gave at that time is necessary I make the following additional observations and comments.
Contrary to the arguments advanced on Mr Adcock’s behalf, the question whether his claimed entitlement to a redundancy payment depended, in part, on whether Blackmores had terminated his employment was perfectly clear by the time the hearing commenced. The issue had been first raised, arguably elliptically, in the response filed on 12 December 2014 and then, expressly, at para.26(c) of the amended response filed on 23 July 2015. To the extent that the amended response could have been pleaded in a way which gave better and more appropriate prominence to the issue, the matter was further clarified in the 3 August 2015 letter from the respondents’ solicitors to Mr Adcock’s solicitors in the following terms:
Although the redundancy provisions applied to your client’s employment, he did not become entitled, under the Enterprise Agreement, to any redundancy payment as his employment was not terminated by the First Respondent.
Finally, by the time senior counsel for the respondents had opened the respondents’ case at the beginning of the first day of the trial, those representing Mr Adcock should have been under no misapprehensions concerning why the respondents said he was not entitled to a redundancy payment. Relevantly, Mr Taylor said:
But, ultimately, the case against us, we say, is misguided in that it just fails to understand that redundancy doesn’t arise unless Blackmores terminates the employment. The case against us appears to proceed on the basis that the applicant has a right to a redundancy in the same way as an applicant had accrued a right to annual leave and, therefore, he could insist on it. With respect, that has never been what a redundancy provision is for. It’s to compensate employees whose employment has unfortunately had to be terminated. It only applies where the employment is terminated by the employer for reason of redundancy. There’s [sic] two steps. … Firstly, it has to be terminated by the employer; and, secondly, for reason of redundancy. And we say that, in this case, it was the applicant who terminated. In short, the applicant jumped too early.
The facts contradict the submission that the respondents failed to identify their argument on this issue with sufficient clarity until the parties’ cases were closed or that the respondents should seek to further amend the response.
How was Mr Adcock’s employment terminated?
Submissions
Mr Adcock argued that upon Blackmores deciding that it no longer wanted his Commercial Manager Asia job to be done by anyone, thereby rendering it redundant in accordance with cl.38.1(a) of the Enterprise Agreement, his employment was terminated.
The interaction of cl.38.1 of the Enterprise Agreement and s.119(1) of the FW Act was not the subject of submission but it appears to have been assumed that, in accordance with s.55 of the FW Act, the relevant portions of the former had substantially the same effect as the latter or were ancillary, incidental or supplemental to it. Arguing his case on the Enterprise Agreement by analogy, Mr Adcock submitted that the word “employment” in s.119(1) is a reference to a specific role which was being performed under the contract of employment before it was made redundant. He submitted that an employee’s entitlement to redundancy pay arose upon his or her job being made redundant and did not depend on the employer making a separate decision to terminate the employment. Mr Adcock argued that an employer’s decision that it no longer required a job to be done by anyone amounted to the termination of the employment at the initiative of the employer.
The respondents’ position was that it had been Mr Adcock who had terminated his employment, not Blackmores.
Discussion
The relevant terms of the Enterprise Agreement have the same effect as the relevant part of s.119 of the FW Act. Clause cl.38.1(a) and the introductory words of cl.38.4 (which provides for redundancy payments) of the Enterprise Agreement and s.119(1) of the FW Act require there to have been a termination of employment before an entitlement to a redundancy payment arises. The first question in a case such as the present is therefore whether there has been a termination of employment. If there has been a termination, the person who terminated it must be identified and, if it was the employer, the enquiry then becomes whether the termination occurred because the employer no longer required the employee’s job to be done by anyone.
“Termination of employment” means termination of the employment relationship and the end of the provision of work in exchange for payment: Automatic Fire Sprinklers Pty Ltd v Watson (1946) 72 CLR 435; Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 427-428 per Brennan CJ and Dawson and Toohey JJ.
The redundancy of a job or position does not necessarily amount to a termination of employment as Mr Adcock contended. The authorities cited by Mr Adcock in support of that contention did not support it and in fact demonstrated that redundancy of a position does not necessarily mean that an employee’s employment is terminated. In R v Industrial Commission (SA); Ex parte Adelaide Milk Supply Co-operative Ltd (1977) 16 SASR 6, Bray CJ drew a distinction between the redundancy of a position and dismissal arising out of a position being made redundant. His Honour said:
… the concept of redundancy in the context we are discussing seems to be simply this, that a job becomes redundant when the employer no longer desires to have it performed by anyone. A dismissal for redundancy seems to be a dismissal, not on account of any personal act or default of the employee dismissed or any consideration peculiar to him, but because the employer no longer wishes the job the employee has been doing to be done by anyone. (at 8)
Similarly, in Amcor Ltd v Construction, Forestry, Mining & Energy Union (2005) 222 CLR 241 it was said that:
… in the Termination, Change and Redundancy Case … the emphasis was upon a “job” becoming redundant rather than a worker becoming redundant. As the Commission pointed out, the definition of “redundancy” which it adopted from the Adelaide Milk Supply Co-operative Case recognised that “redundancy situations may not necessarily involve dismissals” (reference omitted) (at 259 [54] per Gummow, Hayne and Heydon JJ)
A dismissal involves termination of a person’s employment without his or her consent: Dibb v Commissioner of Taxation (2004) 136 FCR 388 at 403; Smith v Director-General of School Education (1993) 31 NSWLR 349 at 366; Ex parte Wurth; Re Tully (1954) 55 SR (NSW) 47 at 59 per Brereton J; Advertiser Newspapers Pty Ltd v Industrial Relations Commission of South Australia (1999) 90 IR 211 at 216; Hiser v Hardex Co-operative Ltd (unreported, Supreme Court of New South Wales, Santow J, 14 December 1994).
The authorities cited by Mr Adcock show that a person’s employment relationship with his or her employer is not necessarily dependent on the particular job he or she performs from time to time. So it is in this case where the evidence demonstrates that after making his Commercial Manager Asia role redundant, Blackmores never terminated Mr Adcock’s employment by dismissing him or by indicating that it had no further use for his services. To the contrary, the evidence shows that Blackmores attempted to retain Mr Adcock’s services by offering him a number of positions in place of the one which had been made redundant. In fact he remained one of its employees until 9 or 10 September 2014, depending on the proper characterisation of the events on those days.
In that connection, it was not suggested that Mr Adcock did not receive and accept his salary between 4 July 2014 and 10 September 2014 and it might be inferred that he was paid in that period. Payment and acceptance of salary would tend to contradict Mr Adcock’s argument that his employment was terminated upon the redundancy of his position: what basis would there have been to accept a salary unless an employee? However, as this issue was not argued I have no regard to it.
Even though Blackmores did not expressly or, I find, intentionally, terminate Mr Adcock’s employment by dismissing him, that does not mean that it did not repudiate the underlying contract of employment, thereby providing a basis for the termination of the contract of employment and so also the employment relationship. Contracts of employment may be repudiated by an employer other than by express dismissal of the employee from his or her employment, for instance by a unilateral demotion of the employee: Woolworths (SA) Pty Ltd v Russian (1996) 66 IR 13. However, such conduct will not terminate the employment unless the employee brings the contract of employment to an end by accepting the employer’s repudiation of it: Visscher v Giudice (2009) 239 CLR 361. This is commonly described as a constructive dismissal and the termination of employment in such circumstances should be characterized as having occurred at the employer’s initiative.
The question in cases of alleged constructive dismissal is whether the employer’s conduct, judged objectively, evinces an intention no longer to be bound by the contract or to fulfil it only in a manner substantially inconsistent with the employer’s obligations: Whittaker v Unisys Australia Pty Ltd (2010) 192 IR 311 at 318-319 [32]-[33]. The abolition of a role or position may, but will not necessarily, satisfy that test - whether making a particular position redundant amounts to repudiation will be determined by the terms of the relevant contract of employment. Mr Adcock did not seek to prove that making his job redundant was a repudiation of his contract, instead directing his arguments to whether his employment had been terminated. In this connection I note in passing that Mr Adcock’s employment was subject to a condition that he could be asked to perform tasks or duties other than those set out in the position description of his current job, whatever that was from time to time, and that his position and responsibilities could be changed from time to time. I accept that such provisions were contained in Mr Adcock’s 2008 contract and, further, find that it has not been demonstrated that those terms had been varied or removed at any time before his employment with Blackmores ended in September 2014.
Repudiation may be evidenced by a single act or, where no individual act on its own constitutes a repudiation, by an accumulation of conduct: Earney v Australian Property Investment Strategic Pty Ltd [2010] VSC 621 at [77]. Mr Adcock did not suggest that the combined effect of the redundancy of the Commercial Manager Asia position and the alternative positions he was offered amounted to a repudiation of his contract.
The terms and conditions of the alternative positions Mr Adcock was invited to consider might also have been relevant to whether Blackmores otherwise repudiated his contract of employment, albeit at later points. However, Mr Adcock did not suggest that they were, themselves, repudiatory of his contract of employment, for instance because they involved a significant diminution in his remuneration, status or responsibility, such as was seen in Earney v Australian Property Investment Strategic Pty Ltd, rather than just unappealing to him.
Because Mr Adcock did not allege that the redundancy of his job or the offers of alternative positions amounted to repudiatory conduct, it is not necessary to consider whether, by that conduct, Blackmores repudiated Mr Adcock’s contract of employment.
What Mr Adcock did contend was that the respondents had argued that an employer could avoid a termination of employment by reason of redundancy if it offered (any) alternative work to the employee who had been performing the redundant job. His argument was:
In practical terms, the result of such a construction would be that any employer wishing to avoid redundancy payments would not terminate the employment but purport to transfer the redundant employee to an unsuitable role, including for example, an interstate transfer or the transfer of a senior employee to a menial role.
I did not understand the respondents’ arguments to have been to that effect. However, as the redundancy of Mr Adcock’s job has not been shown to have been repudiatory of his contract of employment or a termination of his employment, and Mr Adcock did not attempt to show that any of the offers of alternative positions made to him were themselves repudiatory, the point goes nowhere.
Finding
Mr Adcock has failed to prove that the redundancy of a position, without more, amounts to the termination of employment and he did not seek to prove that the redundancy of his Commercial Manager Asia position, or the related offers of alternative positions, amounted to repudiatory conduct on the part of Blackmores which he could accept and thereby bring about the termination of his employment. I therefore find that Mr Adcock has not proved that his employment was terminated by Blackmores’ action in making his Commercial Manager Asia position redundant. I find that it was he who terminated the employment by saying in his letter to Blackmores of 9 September 2014 that he would no longer be attending for work. In doing so he repudiated his contract of employment which was terminated when Blackmores accepted his repudiation of it, that acceptance being effective on 10 September 2014.
Because Blackmores did not terminate Mr Adcock’s employment the basis for his claims for redundancy pay, pay in lieu of notice and superannuation “owing for redundancy and notice pay” have not been made out and so those claims will be dismissed.
Other repudiation by Blackmores?
Separately from and in addition to the allegation that Blackmores had terminated his employment, Mr Adcock alleged that the company had repudiated his contract of employment by failing to recognise that his role had been made redundant and by failing to pay him pay in lieu of notice and redundancy pay. He alleged that such a failure was a breach of cls.36.1, 36.2, 38.2(e) and 38.4 of the Enterprise Agreement, which dealt with:
a)Blackmores’ employees’ entitlement to receive notice of termination of employment and the length of that notice (cls.36.1, 36.2);
b)an exception to the operation of the Enterprise Agreement’s redundancy clause, cl.38 (cl.38.2(e)); and
c)the quantification of redundancy payment entitlements under the Enterprise Agreement (cl.38.4).
Those provisions had no application in this case because Blackmores did not terminate Mr Adcock’s employment.
Further, although the contractual document mentioned above at [25] and [83] referred to the Blackmores Collective Agreement 2006, a predecessor of the Enterprise Agreement, it did not incorporate it. There is, accordingly, no basis to conclude that a failure to observe the terms of the Enterprise Agreement, the apparently accepted successor of the Blackmores Collective Agreement 2006, was a breach of Mr Adcock’s contract of employment.
For these reasons, the alleged breach of contract is not made out.
Misrepresentations
Blackmores
The principal allegation of misrepresentation made by Mr Adcock was that Blackmores, through its representatives Ms Cooper, Mr Henfrey and Ms Redfearn, misrepresented his rights under the Enterprise Agreement by telling him that he was not entitled to a redundancy payment. For the reasons given earlier, such statements were not misrepresentations.
Ms Cooper
In his amended application Mr Adcock alleged against Ms Cooper in her own right that her statement of 1 September 2014 allegedly to the effect that senior employees often found it more difficult to have redundancies awarded in the courts was also a misrepresentation of his workplace rights. In his affidavit of 20 March 2015 he put it differently, deposing that Ms Cooper had said:
If you go to court the company can show they did not want to make you redundant as they have offered you a similar role. Redundancy is really less likely to apply to senior managers.
The allegation as particularised is not supported by the evidence. Further, Ms Cooper’s statements, which I find she made, said nothing about the existence, content or exercise of a workplace right enjoyed by Mr Adcock. They merely commented unspecifically on situations such as Mr Adcock’s. In any event, even if Ms Cooper’s statements had misrepresented Mr Adcock’s rights, it could not have been expected that he would rely on comments of such generality when making decisions on, or taking action over, the existence, content or exercise of such right as he had to a redundancy payment. That is particularly the case given Ms Cooper’s unchallenged evidence that Mr Adcock disclosed in that conversation that he had already instructed solicitors.
The latter comments concern the exception to the operation of s.345(1) of the FW Act found in s.345(2) which states:
(2) Subsection (1) does not apply if the person to whom the representation is made would not be expected to rely on it.
I was not taken to any authorities on the meaning of those words. I read them to mean that s.345(1) will not apply if a reasonable person in the circumstances of the person making the misrepresentation would not, at the time the representation is made, expect the recipient of the misrepresentation to rely on it. The words “would not be expected to rely on it” imply an objective test and, to operate fairly, must relate to the representor’s state of mind. In that connection, if s.345(2) were to operate by reference to a hypothetical reasonable person without knowledge of the dealings between the parties to the misrepresentation, it would be possible that contextual matters which could shed light on whether the recipient of the misrepresentation would be expected to rely on the misrepresentation might not be taken into account. Further, use of the word “would” points to the test being applied by reference to the state of knowledge existing at the time the misrepresentation is made: SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190 at 1195 [17].
Mr Henfrey
Mr Adcock alleged in his amended application that on 25 August 2014 Mr Henfrey wrongly represented that he was not entitled to receive notice or redundancy pay under the Enterprise Agreement because his contract provided that his duties might be varied from time to time. Mr Adcock deposed that he had a conversation with Mr Henfrey on 25 August 2014 during which words to the following effect were said:
Adcock:… if an appropriate role cannot be found, then I would like to discuss the prospect of redundancy. As my role no longer exists, I believe that is grounds for redundancy. My understanding is that our Enterprise Agreement accommodates such a situation. Could you please show me the payment calculations relating to the redundancy of my role?
Henfrey:I don’t think that is correct. Although that role no longer exists, I believe that if you are offered an alternate role with similar conditions then redundancy would not kick in.
Adcock:Okay. I’ll need to clarify that as it is different from my reading of the Enterprise Agreement.
HenfreyI’ll confirm that with Linda and Chris …
For his part, Mr Henfrey denied having said:
I don’t think that is correct. Although that role no longer exists, I believe that if you are offered an alternate role with similar conditions then redundancy would not kick in.
and deposed that, in fact, he had said:
I don’t think we’re at that stage yet. We want to find you another role.
An email that day from Mr Henfrey to Mr Last, Mr Osborne and Ms Redfearn reporting on this conversation did not, in my view, assist in the resolution of the differing recollections of what Mr Henfrey said.
On balance, I prefer Mr Henfrey’s version of the conversation because it conforms to what I accept was Blackmores’ position, namely that they valued Mr Adcock, wanted to find him another job and considered redundancy to be a last resort. In that regard, I reject suggestions that Ms Holgate had reasons other than the wish to retain Mr Adcock’s services for her disinclination to offer him a redundancy. Mr Adcock’s recollection reflects his mistaken understanding of the operation of the Enterprise Agreement in that it confuses redundancy of a job with termination of employment, whereas it appears to me that throughout this disagreement Blackmores has always had a correct understanding of how cl.38 of the Enterprise Agreement operated. Mr Adcock’s recollection also reflects what I consider to have been his erroneous perception of Blackmores’ motivation to find him a new role. I consider it unlikely that Mr Henfrey would have made the statement he challenges because it reflects a motivation and an understanding of the operation of the Enterprise Agreement which I do not believe he had.
Mr Adcock also alleged that in a letter dated 2 September 2014 Mr Henfrey for a second time wrongly stated that he was not entitled to receive notice or redundancy pay under the Enterprise Agreement because his contract provided that his duties might be varied from time to time. The letter in question relevantly stated:
I note that Blackmores’ restructure of your Commercial Manager, Asia position into a Business Implementation and Transition Manager - Asia role is permitted by your contract of employment which provides that:
“(b)You may also be asked and agree to perform other tasks or duties that are within your qualifications, training, skills or capacity.
(c)Your position and responsibilities may change during your employment. If this occurs, the other conditions set out in this document will continue to apply to your employment, unless they are varied in writing.”
The requirement to perform this new role falls well within your skills and capacity …
Please take some time to review this letter. The restructure to your role has been completed effective immediately, however, we are willing to allow you until 5 September 2014 to respond that you have accepted the role as the Business Implementation and Transition Manager - Asia.
Contrary to Mr Adcock’s allegation, that letter said nothing about redundancy payments and was concerned only with redeploying him within Blackmores. Again, it appears that Mr Adcock understood Blackmores’ intentions through the prism of his misunderstanding that he was entitled to a redundancy payment and a mistaken belief that Blackmores’ goal was to avoid giving him one.
Mr Henfrey and Ms Redfearn
Mr Adcock further alleged that on 4 September 2014 Mr Henfrey and Ms Redfearn once more wrongly represented to him that he was not entitled to receive notice or redundancy pay under the Enterprise Agreement because his contract provided that his duties might be varied from time to time. He alleged that Mr Henfrey had repeated the misrepresentation on 9 September 2014. Mr Adcock’s evidence did not support the particulars of his allegation to the extent that his accounts of the conversation on 9 September 2014 did not record Mr Henfrey saying anything about notice or redundancy pay entitlements although in Mr Adcock’s affidavit of 20 March 2013 (see [40] above) there was some evidence supportive of the remainder of the allegation.
Nonetheless, Mr Adcock conceded in cross-examination that he had made it clear at meetings attended by both Mr Henfrey and Ms Redfearn that he had received advice which was inconsistent with Blackmores’ interpretation of the situation. In circumstances where he had his own advisers, it would not have been expected by Mr Henfrey and Ms Redfearn that Mr Adcock would rely on their comments about his workplace rights rather than on what his advisers might say on the issue.
Finding
For these reasons I find that Blackmores, Ms Cooper, Mr Henfrey and Ms Redfearn did not contravene s.345 of the FW Act.
Other
Mr Adcock also made submissions concerning the applicability and operation of cl.38.3 of the Enterprise Agreement and s.120 of the FW Act. However, the latter has no application because Mr Adcock was not entitled to receive redundancy pay from Blackmores and the former had no application because there was no “proposed termination” at the instigation of Blackmores to discuss.
CONCLUSION
Mr Adcock has not made out his claims.
Consequently, the application will be dismissed.
I certify that the preceding one hundred and nine (109) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Date: 19 February 2016
CORRECTIONS
Paragraph 70 line 7 – delete “2014” and insert “2015”.
Paragraph 105 line 7 – insert “on” between “than” and “what”.
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