FEDERAL COURT OF AUSTRALIA
Buckeridge v Littlepay Pty Ltd [2023] FCA 1036
File number(s): VID 107 of 2022 Judgment of: O’CALLAGHAN J Date of judgment: 30 August 2023 Catchwords: INDUSTRIAL LAW – respondent terminated applicant’s employment on ground of redundancy – where applicant alleged termination was adverse action within the meaning of s 342 of the Fair Work Act 2009 (Cth) – where applicant claimed adverse action was taken because she exercised workplace rights or took sick leave (Fair Work claims) – Fair Work claims dismissed – where applicant alleged that respondent was vicariously liable for an alleged tort of inducing breach of contract (tort claim) – tort claim not supported by evidence – tort claim dismissed – where applicant alleged respondent contravened s 1317AC of the Corporations Act 2001 (Cth) (whistleblower claim) –whistleblower claim dismissed – application dismissed Legislation: Corporations Act 2001 (Cth) s 1317AC
Fair Work Act 2009 (Cth) ss 340, 341, 342, 352, 360, 361, 793
Cases cited: Alam v National Australia Bank Ltd (2021) 288 FCR 301
Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500
Directed Electronics OE Pty Ltd v OE Solutions Pty Ltd (No 8) [2022] FCA 1404
Ermel v Duluxgroup (Australia) Pty Ltd (No 2) [2015] FCA 17
General Motors–Holden’s Pty Ltd v Bowling (1976) 51 ALJR 235
Division: Fair Work Division Registry: Victoria National Practice Area: Employment and Industrial Relations Number of paragraphs: 162 Date of hearing: 17-19 April 2023 Counsel for the Applicant: J Fetter Solicitor for the Applicant: Lander & Rogers Counsel for the Respondent: JRM Tracey Solicitor for the Respondent: Whitehall Workplace Law ORDERS
VID 107 of 2022 BETWEEN: REBECCA BUCKERIDGE
Applicant
AND: LITTLEPAY PTY LTD
Respondent
ORDER MADE BY:
O’CALLAGHAN J
DATE OF ORDER:
30 AUGUST 2023
THE COURT ORDERS THAT:
1.The application be dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
O’CALLAGHAN J
INTRODUCTION
The applicant, Ms Buckeridge, was employed by the respondent, Littlepay Pty Ltd (Littlepay), as its General Counsel on 1 September 2017.
On 3 December 2021, Littlepay terminated her employment, by reason of redundancy.
Ms Buckeridge alleged that she was in fact dismissed because she exercised workplace rights within the meaning of s 341(1) of the Fair Work Act 2009 (Cth), in that she:
(a)made a complaint against Mr Paul Griffin, Littlepay’s Global Head of Commercial;
(b)made a complaint against Mr Amin Shayan, Littlepay’s Chief Executive Officer,
and that Littlepay had taken adverse action against her within the meaning of s 342(1), in contravention of s 340(1)(a)(ii).
She also alleged that she was dismissed because she had taken sick leave, and that Littlepay had contravened s 352 of the Fair Work Act.
She further alleged that Mr Shayan had induced a breach of a share options agreement she had entered…
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Details
- Case
- [2023] FCA 1036
- Decision Date
CaseChat Overview and Summary
In the case of Buckeridge v Littlepay Pty Ltd, the applicant, Ms Rebecca Buckeridge, brought a claim against her former employer, Littlepay, alleging wrongful dismissal and adverse action. The applicant sought relief under the Fair Work Act 2009, the Corporations Act 2001, and for a tort of inducing breach of contract. The primary dispute was whether Ms Buckeridge was dismissed due to her exercise of workplace rights, her sick leave, or for redundancy. The legal issues centred on whether the dismissal constituted adverse action under the Fair Work Act, whether Littlepay was vicariously liable for the alleged tort, and whether Littlepay contravened the whistleblower provisions in the Corporations Act.
The Federal Court found that Ms Buckeridge's dismissal was based on redundancy, not adverse action. The court relied on the direct testimony of Amin Shayan, the Chief Executive Officer of Littlepay, who provided a reliable account of the reasons for the dismissal. The court accepted Mr Shayan's evidence that the decision to dismiss was due to a restructure of the legal function, not because of Ms Buckeridge's complaints or her sick leave. The evidence did not support the applicant's claims of adverse action, tortious interference, or whistleblower retaliation. Consequently, the court dismissed all claims brought by Ms Buckeridge.
In conclusion, the court dismissed the application, finding that Littlepay had met its burden of proving that the dismissal was for redundancy. The court found no merit in the claims of adverse action, tortious interference, or whistleblower retaliation. The orders of the court reflect the dismissal of the application in its entirety.
The Federal Court found that Ms Buckeridge's dismissal was based on redundancy, not adverse action. The court relied on the direct testimony of Amin Shayan, the Chief Executive Officer of Littlepay, who provided a reliable account of the reasons for the dismissal. The court accepted Mr Shayan's evidence that the decision to dismiss was due to a restructure of the legal function, not because of Ms Buckeridge's complaints or her sick leave. The evidence did not support the applicant's claims of adverse action, tortious interference, or whistleblower retaliation. Consequently, the court dismissed all claims brought by Ms Buckeridge.
In conclusion, the court dismissed the application, finding that Littlepay had met its burden of proving that the dismissal was for redundancy. The court found no merit in the claims of adverse action, tortious interference, or whistleblower retaliation. The orders of the court reflect the dismissal of the application in its entirety.
Orders
Orders of the court
1. The application be dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
The following relevant exhibits were filed during the course of the hearing:(1)Exhibit A1: Email from Sandra Pope to Derek Humphrey-Smith dated 26 November 2021;(2)Exhibit A3: Email from Amin Shayan to Sandra Pope dated 1 October 2021;(3)Exhibit A4: Email from Alison Carthew to Amin Shayan dated 26 November 2021;(4)Exhibit A5: Undated Head of Legal Compliance advertisement; and(5)Exhibit A6: Jennifer Tod’s meeting notes dated 18 June 2021.FACTSLittlepay and Ms Buckeridge’s employment Littlepay is a company registered under the Corporations Act and a national system employer subject to the Fair Work Act. It is wholly-owned by a company based in the United Kingdom, Littlepay Mobility Ltd (Littlepay UK), which is in turn controlled by another company based in the United Kingdom, ICM Mobility Group Ltd (ICM). Littlepay’s Chief Executive Officer is Mr Amin Shayan. Mr Shayan is also a Director of Littlepay and Littlepay UK. On 1 September 2017, Littlepay employed Ms Buckeridge as its General Counsel. Ms Buckeridge was based in Melbourne during her employment and provided internal legal services in relation to matters in Australia, the United Kingdom, the European Union, and the United States. Options contract On 30 October 2020, Ms Buckeridge entered into an options contract with Littlepay UK. That options contract consisted of a written invitation dated 21 October 2020, which incorporated the “Littlepay Incentive Program Plan Rules” dated 14 October 2020. The Littlepay Incentive Program Plan Rules contained the following relevant clauses:7 Exercise of an Option7.1 Manner of exerciseWhen permitted to do so under this Rule 7 or in an Offer Document, a Participant may exercise an option by:(a)paying the Exercise Price to or as directed by the Company; and(b)delivering to the Company(i)the Participant’s Option certificate; and(ii)if applicable, a Deed of Accession duly executed by each person required to execute it.…7.4 Board discretionOn valid exercise of an Option, the Board must issue Plan Shares in the Company or in any other Group Entity, as it may choose at its absolute discretion.…13 Issue and ranking13.1 Issue of Rights or Plan SharesIf:…(b)an Option is properly exercised, or Right properly redeemed (resulting in an entitlement to Plan Shares),in accordance with the applicable Offer Documents, the Company must within such period as stated in or required by the Offer Documents (or failing that, within 10 Business Days), issue to the Participant each Right or Plan Share to which the Participant is entitled upon such acceptance, exercise or redemption.…14 Administration of the Plan14.1 Board to administerThis Plan will be administered by the Board [of Littlepay UK] ……14.3 Board has unfettered discretionExcept as expressly provided otherwise in the Offer Documents, the Board has absolute and unfettered discretion without needing to obtain consent from any person in the exercise of any rights, powers or discretions under each Offer Document and to act or refrain from acting under any Offer Document or in connection with this Plan.…17 Terms of Employment…17.3 No claimsNo Eligible Employee, Nominee Participant or other person has any right to compensation or damages from any Group Entity in respect of any loss of future rights under this Plan, as a consequence of termination of an Eligible Employee’s Employment.…19 General…19.6 Governing Law(a)These Rules are governed by and are to be construed in accordance with the laws applicable in England and Wales.(b)The Company, each Eligible Employee and each Participant irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of England and Wales and any courts which have jurisdiction to hear appeals from any of those courts and waives any rights to object to any proceedings being brought in those courts.
Evidence
Evidence Before The Court
As to the sick leave plea, Littlepay admitted that Ms Buckeridge commenced a period of paid sick leave on 6 October 2021 and a period unpaid sick leave on 18 November 2021. It denied that Ms Buckeridge “had any legal right to be on ‘unpaid sick leave’” and denied that it dismissed Ms Buckeridge because she was on sick leave. EVIDENCE The applicant read the following:(1)Affidavits of Rebecca Buckeridge affirmed 14 September 2022 and 8 December 2022. Ms Buckeridge gave evidence on numerous matters, including her employment at Littlepay, her grant of stock options, the Griffin Complaint, and the Shayan Complaint; and(2)Affidavits of Emma Montrose affirmed 14 September 2022 and 8 December 2022. Ms Montrose worked at Littlepay as its “People & Culture Lead” and later as “Head of People and Culture” between July 2017 and April 2021. Mr JRM Tracey, counsel for Littlepay, cross-examined Ms Buckeridge, including about her redundancy, the Griffin Complaint, and the Shayan Complaint. Mr Tracey also cross-examined Ms Montrose. Relevantly, Ms Montrose agreed with counsel’s proposition that in giving evidence, she was in court “engaging in advocacy on behalf of Ms Buckeridge” and that she “left [Littlepay] in circumstances where [she was] unsatisfied with [her] employment”. Ultimately, her evidence was not relevant to the issues in dispute. The respondent read the following:(1)Affidavit of Amin Shayan affirmed 17 November 2022. He gave evidence on numerous topics, including Littlepay’s restructure of its legal function, the Griffin Complaint, and the Shayan Complaint;(2)Affidavit of Jennifer Tod 17 November 2022. Ms Tod is, and has been since 17 May 2021, “Head of People and Culture” at Littlepay. She gave evidence about issues with Littlepay’s legal function, a meeting between herself, Ms Buckeridge, and Mr Shayan on 18 June 2021, the decision to restructure the legal function, the Griffin Complaint, and the Shayan Complaint; and(3)Affidavit of Steven Gallagher 17 November 2022. Mr Gallagher is a director of Littlepay. He gave evidence as to the process of making Ms Buckeridge redundant. Mr Fetter cross-examined Mr Shayan at considerable length on numerous topics. Given the narrowing of Ms Buckeridge’s case in closing, much of this cross-examination (which occupied 1.5 days) was ultimately beside the point. Mr Fetter cross-examined Ms Tod about the 18 June 2021 meeting, the Griffin Complaint, and the Shayan Complaint. The following relevant exhibits were filed during the course of the hearing:(1)Exhibit A1: Email from Sandra Pope to Derek Humphrey-Smith dated 26 November 2021;(2)Exhibit A3: Email from Amin Shayan to Sandra Pope dated 1 October 2021;(3)Exhibit A4: Email from Alison Carthew to Amin Shayan dated 26 November 2021;(4)Exhibit A5: Undated Head of Legal Compliance advertisement; and(5)Exhibit A6: Jennifer Tod’s meeting notes dated 18 June 2021.FACTSLittlepay and Ms Buckeridge’s employment Littlepay is a company registered under the Corporations Act and a national system employer subject to the Fair Work Act. It is wholly-owned by a company based in the United Kingdom, Littlepay Mobility Ltd (Littlepay UK), which is in turn controlled by another company based in the United Kingdom, ICM Mobility Group Ltd (ICM).
Decision
Reasons for decision
Chief Justice French and Crennan J in Barclay at 517 [45] said that:This question [why was the adverse action taken] is one of fact, which must be answered in the light of all the facts established in the proceeding. Generally, it will be extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer. Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker or because other objective facts are proven which contradict the decision-maker’s evidence. However, direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer …(Citations omitted; emphasis added.) It follows that if Mr Shayan’s direct testimony as to what actuated his reasons for dismissal is accepted as reliable, then Littlepay will have discharged its onus. Mr Fetter accepted as much in his closing address (“You have before you evidence on affidavit as to Mr Shayan’s reasons, which, if they’re to be believed, exonerate him and the company”). As Snaden J said in Serpanos at [124]:A respondent may rebut the statutory presumption for which s 361(1) provides by leading evidence as to why it engaged in the conduct that an applicant seeks to impugn. The question for determination starts and ends with whether, in fact, those reasons actuated that conduct. … At issue is simply whether [the reasons for which it did] were, in fact, the reasons that animated that conduct.(Emphasis added.) Ms Buckeridge submitted that she was dismissed because she exercised her workplace rights in making the Griffin Complaint and making the Shayan Complaint, and because she was absent on sick leave. Her closing written submissions on the reasons for dismissal ultimately relied on were as follows:7.The Court should reject Mr Shayan’s evidence as to his reasons. He was an unimpressive witness. 8.… 9.Things took a turn for the worse in early 2021, when Ms Buckeridge began complaining about Mr Griffin, a “valuable” new hire. Mr Shayan resented the complaints and wanted to shield Mr Griffin from their consequences. It is this which prompted Mr Shayan to consider (after the June 2021 meeting) retrenching Ms Buckeridge.10.The last straw, it seems, was Ms Buckeridge’s request for a formal investigation, made on 19 July 2021. Mr Shayan resented the “impact” of the investigation on Mr Griffin, and the cost to Littlepay. As soon as the Blax report landed, he decided that Ms Buckeridge’s role should be abolished; although he may be accepted in his evidence that he intended to consult with her about redeployment before taking the final decision to dismiss her.11.However, on 19 September 2021, Ms Buckeridge complained to ICM about Mr Shayan. Mr Shayan was very upset by the complaints and wanted to be “cleared”.12.By Friday 26 November 2021, Mr Shayan knew that WorkLogic had found the allegations “unsubstantiated” but only on the basis that Ms Buckeridge had not participated in an interview (which she was not required to attend).13.Whether he was “cleared” or not, Mr Shayan was still highly aggrieved by the fact that serious allegations had been made against him. He therefore determined to dismiss Ms Buckeridge without consulting with her about redeployment; this would ensure that she could not repeat her offers to redeploy to London, and ensure that the outcome would be her dismissal.14.He made sure of this outcome by rushing the process, insisting on the Friday meeting (which she was not bound to attend), and then relying on her failure to attend the meeting as a reason to proceed with the dismissal.15.The fact that Mr Rogers’ job is in substance the same as Ms Buckeridge’s former role shows that “redundancy” was always a fig leaf.
Ratio Decidendi
Legal Principle Established
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