Antouny v Anzam (Aust) Pty Ltd
[2003] VSCA 145
•11 September 2003
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 7259 of 2001
| JOHN ANTOUNY | |
| Appellant | |
| v. | |
| ANZAM (AUST.) PTY. LTD. | Respondent |
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JUDGES: | ORMISTON, BATT and BUCHANAN, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 11 September 2003 | |
DATE OF JUDGMENT: | 11 September 2003 | |
MEDIUM NEUTRAL CITATION: | [2003] VSCA 145 | |
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CONTRACT – Executive accountant’s contract of employment – Whether term relating to redundancy incorporated or to be implied or inferred.
APPEALS – Non-appearance by appellant.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | No appearance | |
| For the Respondent | Mr J. Ruskin Q.C. Mr C.B. O’Grady | Middletons |
ORMISTON, J.A.:
This is an appeal from a judgment of a judge of the County Court in which the appellant was the defendant and counterclaimant and the respondent was the plaintiff and defendant to counterclaim.
The respondent, whom I shall call “Mitre 10” for convenience, although the company is now known as Anzam (Aust.) Pty. Ltd., employed the plaintiff and appellant, Mr John Antouny, as an accountant in an executive position. In the course of his period of employment the company known as Mitre 10 Australia Pty. Ltd. was at first a relatively small organisation, but at the critical time it had expanded significantly and it was the circumstances which flowed from that expansion which led to the claims made on either side.
There was a claim made by Mitre 10 for the return of a sum of money which Mr Antouny had taken during the last few days of his employment. In the course of the trial it was conceded by Mr Antouny, through his counsel, that Mitre 10 should have judgment for that sum, which was $45,153.02. The major dispute at the trial, which extended for at least two weeks, was as to the counterclaim by Mr Antouny who sued, in substance, for failure to pay him a redundancy payment and also for slander. Both those claims were dismissed and there was therefore judgment on the counterclaim for Mitre 10, as the defendant to counterclaim.
The appellant appealed from only one aspect of that order, namely the dismissal of his counterclaim in which he sought a sum by way of redundancy payment for termination of his employment with the company. He did not seek to appeal against the dismissal of his counterclaim in slander and so it is unnecessary to consider that aspect of the case.
Unfortunately Mr Antouny, who lives in Sydney, has been unable to afford, as he says, the expense or cost of representation by solicitor or counsel before the Court on this appeal, although the appeal books and the like were prepared by his former solicitors. He sent a letter to the Court dated 30 August 2003 indicating his dissatisfaction with the litigation and using language which perhaps cannot be said to be likely to serve him well, which was, in many respects, abusive of a considerable number of people, though it is unnecessary to examine the nature of that abuse but rather say that it did contain within it some arguments which the Court would understand to be his manner of supporting the appeal.
This is not a case where the Court can infer that by his absence today he is not intending to prosecute the appeal, because correspondence has been put before the Court consistent with that letter, together with another letter sent to the Court, which indicates that he merely does not wish to be present to present his argument, but desires the Court to deal with the appeal as best it may and in his absence. Accordingly we determined not to dismiss the appeal peremptorily (as has occurred in the past[1]) and have heard argument from counsel for the respondent. Having read with care the submissions put by Mr Antouny in his detailed letter sent to the Court, we have endeavoured to ascertain as best we can the nature of the claim made in this respect by Mr Antouny, what was said about it by the judge in his reasons and what was said about it in the course of trial.
[1]Cf. Williams: Civil Procedure – Victoria para.64.16.10.
In substance the appeal raises two grounds which may be described as one because each of them, in their amended form, state that the judge erred in finding that the appellant, Mr Antouny, had been offered a suitable or alternative employment position at the time that the Mitre 10 organisation in its smaller form was taken over by Anzam in the latter part of the year 1999 and the early part of the year 2000. In the course of the takeover there was a considerable number of managerial positions which had to be reconsidered, so that a number of positions were lost and staff had to be redeployed in a number of ways, both in so far as their positions in the company were concerned and the places at which they worked.
Mr Antouny, when he returned from holidays after Christmas 1999, was approached by one of the senior executives and, in substance, was told that his position as National Accountant reporting to the Chief Executive Officer was to be made redundant. He was therefore told that he would be offered a position which was to be called the Administration Manager Merchandising. That position was said to be a responsible position in the new company. In fact it was located closer to Mr Antouny’s home. More importantly it was said that the job would carry with it a higher level of remuneration than he was receiving at the time, although it is by no means clear the extent to which that level of remuneration would be greater. I can say only that it appears that Mr Antouny was being paid $65,000 per annum salary and had also the benefit of a company car and superannuation which was not quantified, at least in the course of argument today, and it was suggested, as I understand it, that in one way or another Mr Antouny was going to be offered a salary package of about $90,000 in the new role, an increase which may not have been very significant.
Nevertheless the real dispute on the part of Mr Antouny was that he was not being offered a true accounting role and that instead he was being offered a position on the merchandising side which involved relatively little accounting work as such, although it had such elements of accounting as would be involved on that side of the business, and it was said by a number of the witnesses for Mitre 10 to have considerably greater responsibilities. Among his tasks, as I understand it, there would be the development of the “national product file”, whatever that might mean, income control, indent product management, and calculations relating to pricing such as GST and particular accounts. The person to whom he was to report would be the General Manager Merchandising, who was, of course, not the CEO, but a person further down the scale in this larger company. Mr Antouny also objected to the fact that his new role was in form less significant than it was previously in that he had at that stage reported directly to the CEO. It may be said that he might not fairly have expected quite the same reporting line, as the new company was many times larger than the original Mitre 10 organisation.
Be that as it may, the judge reached the conclusion, as a result of the trial, having heard all the evidence, that Mr Antouny had been offered what was described by him as a position which was substantially equivalent to the position that had ceased and likewise found it had increased remuneration and increased responsibility, although it had a reduced accountancy element in it. Essentially that was the finding which was challenged.
There may be something in the appellant’s arguments on that question. He was complaining that he was, by training and skills, an accountant and he was being placed in a quite different role in circumstances where his remuneration was not likely to be enormously greater.
Minds may differ as to what was “substantially equivalent” in the circumstances of the case. In my opinion, however, the real problem facing the appellant was not so much in challenging that finding as in supporting any conclusion that it was part of the terms of his employment with Mitre 10 as an executive accountant that he should be offered a “substantially equivalent” position. The judge found, having reached the conclusion that a substantially equivalent position had been offered to him and therefore he was not entitled to any redundancy pay, that it was unnecessary to consider the nature of the agreement. In my opinion, however, it is preferable to reach a conclusion that there was no term in his agreement which entitled him to be offered a substantially equivalent position or to be paid redundancy pay or the like in the circumstances of the case.
There was no analysis of this in detail by the trial judge and there has been no analysis by the appellant in his submissions, but there is not the slightest doubt that it is raised by the respondent in its Notice of Contention and it is clear that the appellant received the notice of contention, for his argument clearly enough responded in certain other respects to that notice of contention.
The appellant’s difficulty is that it cannot be said at this time that, absent some specific agreement, absent some specific circumstances which could lead to a conclusion that terms of this kind were to be incorporated in his contract of employment, there was any term of the kind which the appellant sought to enforce against the respondent. The law relating to redundancies and the like has been developed, if that is the correct expression, by reference to rights which are obtainable under awards or pursuant to the Workplace Relations Act 1996, so far as this state is concerned, enacted by the Commonwealth alone, although in other jurisdictions there are local acts of a similar kind.
The rights which might thereby be enforced are not, so far as I would understand the law and as it was very candidly expounded to us by Mr Ruskin and Mr O’Grady, of a kind which are necessarily incorporated in the contract of employment. It must, I think, be accepted since the decision of the High Court in Byrne v. Australia Airlines Ltd.[2] , that it does not follow that, because an employee has the benefit of an award under relevant legislation, the terms of the award are thereby automatically incorporated in the contract of employment or made implied terms of that contract or to be inferred as part of that contract. Rather they are rights which are capable of being enforced pursuant to the legislative scheme whereby those rights are created, whether under the Workplace Relations Act as it presently applies, or under some other relevant industrial legislative scheme. If that be the case, there is no basis for considering that the alleged term is here to be incorporated, to be inferred or to be implied, especially as it did not appear that any award (or the like) applied to the appellant’s executive position. Whether, in due course, terms of this kind will be by legislation or otherwise incorporated in all contracts of employment, is a matter for the future. Some of those rights are given special priority pursuant to the Corporations Act, ss.556 and 596A and following, but it does not follow that they are thereby terms of the relevant contract of employment.
[2](1995) 171 85 C.L.R. 410.
The difficulty can be seen by the attempted analysis today of what it was which led to the question being asked as to what is “suitable alternative employment”. Where did those words come from? In substance it was not possible to trace those words except by reference to some other legislative scheme for the
giving of rights to employees pursuant to awards, workplace relations contracts or the like. Again the question of the amount of redundancy was incapable of being quantified because there was no relevant and ascertainable term incorporated into this contract. Nor was any evidence called to support the incorporation of such a term.
In the circumstances of the case, therefore, I am persuaded that there was no enforceable right to seek redundancy pay where the appellant, Mr Antouny, had his employment terminated. There was no right to be paid the amount which he claims and I do not think it necessary to consider further whether there was any suitable or alternative employment offered. In all the circumstances of this case the absence of proof of such a term meant that the case must have failed from the outset. I would therefore hold that the appellant’s claim should have been dismissed and that likewise this appeal should be dismissed, so that it is unnecessary to examine any of the other matters raised on either side.
BATT, J.A.:
I agree.
BUCHANAN, J.A.:
I agree with Mr Justice Ormiston.
ORMISTON, J.A.:
The order therefore of the Court is the appeal be dismissed.
MR RUSKIN:
I’m instructed to ask for costs.
(Discussion ensued.)
ORMISTON, J.A.:
In the circumstances the only proper order is that the costs of the appeal be paid by the appellant.
MR RUSKIN:
May it please the Court.
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