Alan Cruickshank v Contemporary Art Centre of South Australia Inc

[2015] FWC 3755

[2015] FWC 3755

The attached document replaces the document previously issued with the above code on 4 June 2015.

At Appearances: on page 5, replace S Bourne with T Bourne

Denise Jelfs

Associate to Senior Deputy President O’Callaghan

4 June 2015

[2015] FWC 3755

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Alan Cruickshank
v
Contemporary Art Centre of South Australia Inc
(U2015/4607)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 4 JUNE 2015

Application for relief from unfair dismissal - jurisdiction - employee not dismissed at the initiative of the employer.

[1] On 8 April 2015 Mr Cruickshank lodged an unfair dismissal application pursuant to s.394 of the Fair Work Act 2009 (the FW Act). In that application Mr Cruickshank asserted that his employment with the Contemporary Art Centre of South Australia Inc (CACSA) had been unfairly terminated. CACSA objected to the application on the basis that it asserted that Mr Cruickshank’s employment had not been terminated at the initiative of the employer.

[2] The application did not proceed to conciliation. It was the subject of a directions conference on 11 May 2015. CACSA did not participate in this conference. The application was listed for hearing on 2 June 2015. The Directions I issued on 11 May 2015 advised that this hearing would consider whether the termination of Mr Cruickshank’s employment was, or was not, at the initiative of the employer and the implications of the Small Business Fair Dismissal Code together with any other initial or jurisdictional issue.

[3] The Fair Work Commission subsequently received material from both parties in this matter.

[4] At the hearing on 2 June 2015 Mr Cruickshank was represented by Ms Riggs, of counsel. CACSA was represented by Mr Bourne, of counsel. Permission, pursuant to s.596(2)(c) was granted in both instances.

[5] Mr Cruickshank was the Executive Director of CACSA and had held that position for some 15 years. In December 2014 Mr Cruickshank advised the CACSA Board of his intention to resign. Resignation arrangements were then finalised and there appears to be no dispute that Mr Cruickshank agreed that his resignation would be effective from 30 April 2015. Mr Cruickshank attended an international art fair in Dubai from 14 March 2015. Around that same time the CACSA Board was made aware that Mr Cruickshank had displayed artwork done by his wife, on the cover of the CACSA publication. The Board was concerned over this action and met to discuss it at an Extraordinary Board Meeting on 17 March 2015. Consequent upon the Board’s consideration of this issue the Board resolved that Mr Cruickshank “be required to take leave immediately, until the date of his already agreed departure from the position.” 1 Advice to this effect was provided to Mr Cruickshank by email on 19 March 2015. This advice stated:

“While all this is very unfortunate the Board cannot be seen to condone the use of the cover image and the ramifications that may result. Given this the Board has no option but to require you to take leave, effective immediately and to desist from further duties appropriate to the role of Executive Director (Please see the attached).” 2

[6] Attached to this email advice was a letter which stated:

“On Tuesday, March 17, 2015, an extraordinary meeting of the CACSA Board was convened.

In attendance were, J. Moss, M. Heruc, J. Messenger, A. Durham, and C. Brisbin. The extraordinary meeting was convened to discuss Board responses to the cover of Broadsheet (44.1).

The meeting was unanimous in the opinion that use of the cover image

1. has severely compromised the Board by the implication that the Board has condoned its use;
2. has exposed the Board to potentially damaging criticism from interest groups;
3. has potentially jeopardized future funding applications;
4. is inconsistent with the trust expected between the Executive Director and the Board.

As a consequence it was decided that the Board has no option but to require you to take leave, effective immediately. This will require that you will cease to undertake any further duties appropriate to the role of Executive Director of CACSA.

You are to remain on leave until April 30th upon which the remaining balance of your entitlements will be paid out as previous agreed.”

[7] The CACSA position is simply that Mr Cruickshank resigned from his employment in January 2015 and was not forced to resign such that there was no termination of his employment at the initiative of the employer. Further, that it was entitled to require Mr Cruickshank to take leave and that requirement did not represent termination of his employment.

[8] Mr Cruickshank’s position is that he was constructively dismissed effective from 18 March 2015 when CACSA advised that he was regarded as being on leave from 18 March 2015 to 30 April 2015, and that that dismissal was unfair. Mr Cruickshank seeks compensation from CACSA.

[9] Mr Cruickshank’s evidence went to the functions he undertook for CACSA and arrangements which applied to the annual leave that he took. His evidence was that he had never before been required to take annual leave. He confirmed that on 14 January 2015 he spoke to the Board about his desire to retire from CACSA. 3 Mr Cruickshank denied the allegations set out in the letter dated 18 March 2015 from Mr Moss. He detailed the steps that he took, in the form of emails and a forecast intention to pursue an unfair dismissal remedy to try to clarify his position. Mr Cruickshank’s evidence was that he continued to be paid until 30 April 2015 but that he considered his employment was terminated on his receipt of the letter dated 18 March 2015.

[10] Mr Moss is the Chair of the Board of CACSA. His evidence went to the operation of CACSA, including its funding arrangements. Mr Moss confirmed that, at the meeting on 14 January 2015, Mr Cruickshank advised of his desire to retire. He confirmed that that resignation was accepted with an effective date of 30 April 2015. 4 Mr Moss’s evidence went to his concern at becoming aware that artwork by Mr Cruickshank’s wife was featured on the front cover of the CACSA publication and that Mr Cruickshank had not disclosed this to the Board. He detailed the extent to which this action jeopardised the CACSA standing in the arts community, including its funding.

[11] Mr Moss’s evidence went to the extraordinary meeting of the Board convened on 17 March 2015. He stated:

“In our deliberations, the Board gave specific consideration to the option of immediate dismissal but elected not to do so, as the Board did not want to be unduly punitive.” 5

[12] Mr Moss confirmed that Mr Cruickshank continued to be paid on a fortnightly basis and that his final salary and pro rata entitlement to annual leave and long service leave was paid out on 23 April 2015. The unchallenged advice provided to me is that these payments were made with respect to entitlements due as of 30 April 2015.

Findings

[13] There is no dispute that Mr Cruickshank is a person protected from unfair dismissal. Section 386 states:

“386 Meaning of dismissed

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

(2) However, a person has not been dismissed if:

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(b) the person was an employee:

(i) to whom a training arrangement applied; and

(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or

(c) the person was demoted in employment but:

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii) he or she remains employed with the employer that effected the demotion.

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.”

[14] The information before me asserts that Mr Cruickshank was employed under a fixed term contract. I note that this may, or may not, be the case but it is not necessary that I determine this issue here.

[15] More significantly, Mr Cruickshank and the Board agreed on his resignation or retirement arrangements. Those arrangements were precipitated by Mr Cruickshank and subsequently confirmed by the CACSA Board. They provided for an agreed termination date of 30 April 2015. Mr Cruickshank drafted a media release in which he confirmed his retirement. 6

[16] I do not accept that the Board’s subsequent direction to Mr Cruickshank to take annual leave from 18 March to 30 April 2015 can be described as an employment termination. It is absolutely clear that the CACSA regarded Mr Cruickshank as a continuing employee until 30 April 2015. It continued to pay him. He continued to receive employment benefits in the form of entitlements and accruals. It may be that Mr Cruickshank has the capacity to seek to dispute whether the CACSA had the authority, under the terms of the employment contract, to require him to take annual leave. However, a requirement to take annual leave must be regarded as something quite separate from an employment termination. That is a matter which could be disputed under the terms of the employment contract that existed between Mr Cruickshank and CACSA, but it is not a matter for determination here. There is simply no evidence before me that establishes that Mr Cruickshank’s employment was terminated with effect from 17, 18 or 19 March 2015 or that the agreed resignation date of 30 April 2015 was changed.

[17] Mr Cruickshank sought to rely on the extent to which he and/or his lawyer had corresponded with the Board on four separate occasions and had even foreshadowed an unfair dismissal application but the Board had not responded. I am unable to accept Mr Cruickshank’s contention that this is indicative of the termination of his employment. I simply do not think that any conclusion to that effect can be surmised from the lack of a response from the CACSA. The CACSA position had already been clearly established in its correspondence to Mr Cruickshank of 18 March 2015 to which I have already referred.

[18] I have also decided that no conclusion could be drawn from emails which Mr Cruickshank sent soon after being advised that the Board had determined that he was on leave. Given that Mr Cruickshank had, at that time, not received advice about his position from his lawyer, I have not had regard to these emails which seem to indicate that he continued to regard himself as employed until 30 April 2015.

[19] Mr Cruickshank requested that I have regard to the findings in the Full Bench decision in O’Meara v Stanley Works. 7 Whilst that decision dealt with considerations relevant to determining whether an employee resigned or was forced to do so by virtue of the conduct of the employer, Mr Cruickshank’s circumstances here are entirely different. There is no suggestion that Mr Cruickshank was forced into advising of his resignation. There is no suggestion that he was required to resign at an earlier time. It is simply the case that the employer required him to take leave rather than to return to work before his retirement.

[20] Consequently, I do not consider that Mr Cruickshank was dismissed. It follows that he is not able to pursue this application and the matter will be dismissed accordingly. An Order (PR568002) to this effect will be issued.

Appearances:

E Riggs counsel for the Applicant.

T Bourne counsel for the Respondent.

Hearing details:

2015.

Adelaide:

June 2.

 1   Exhibit R3, Attachment F

 2   Exhibit R3, Attachment G

 3   Exhibit A1, para 11

 4   Exhibit R3,para 12

 5   Exhibit R3, para 22

 6   Exhibit R3, Attachment D

 7   PR973462 [2006] AIRC 496 (11 August 2006)

Printed by authority of the Commonwealth Government Printer

<Price code C, PR568001>