Cheryl Axleby v Aboriginal Legal Rights Movement

[2021] FWC 3002

[2021] FWC 3002

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Cheryl Axleby
v
Aboriginal Legal Rights Movement
(C2021/1241)

COMMISSIONER PLATT ADELAIDE, 25 MAY 2021

Application to deal with contraventions involving dismissal

[1] On 5 March 2021, Ms Cheryl Axleby lodged a general protections application against Aboriginal Legal Rights Movement (ALRM or the Respondent) under s.365 of the Fair Work Act 2009 (the Act) alleging that on 16 February 2021, she was dismissed in contravention of the general protections provision of the Act.

[2] On 17 March 2021, ALRM filed a Form F8A Employer Response and raised a jurisdictional objection that Ms Axleby had not been dismissed.

[3] As a result of the decision in Coles Supply Chain Pty Ltd v Milford, 1 I am required to determine the jurisdictional objection before the matter can proceed.

[4] On 20 April 2021, the matter was allocated to me and on 3 May 2021, a conference was held, and directions were issued for the filing of material. Mr Bourne and Ms Theodore (of Counsel) were granted permission pursuant to s.596(2)(a) on the basis of complexity and efficiency.

[5] A Hearing was conducted on 25 May 2021 in person. Ms Axleby was represented by Mr Bourne and ALRM was represented by Ms Theodore.

Evidence

[6] The relevant evidence (most of which is not in dispute) is summarised below.

[7] The Applicant first commenced employment as the CEO of ALRM in March 2012 and was engaged on a series of fixed terms contracts. The most recent contract of employment was for a fixed term expiring on 12 March 2021.

[8] In October 2020, the Applicant sustained an injury in the course of her employment. The injury adversely impacted the Applicant’s capacity to work. ALRM’s Acting Chairperson Ms Sandra Miller advised the Applicant that she would need to provide a medical clearance before returning to work. On 27 October 2020, the Applicant advised that she would be off work until 10 November 2020. On 28 October 2020, the Applicant made a recommendation for a person to be appointed as Acting CEO for a period of two weeks and provided a list of priority tasks that needed to be completed. Later that day, Ms Miller advised the Applicant that Mr Chris Larkin had been contracted as Acting CEO until her return and suggested that the Applicant focus on her health. Liability for the workers compensation claim was accepted by ReturnToWorkSA (RTWSA) in early November 2020.

[9] On 4 November 2020, a Workers Compensation case conference was conducted to develop a return to work plan. A proposed return to work date of 9 November 2020 was discussed.

[10] On 12 November 2020, the Applicant wrote to Ms Miller and advised of her intended return to work plan and recommended Mr Larkin be extended until 30 November 2020.

[11] On 25 November 2020, the Applicant corresponded with Ms Miller and raised a number of issues, expressed her desire to return to work, concerns about access to personal information and her hope that the Board’s consideration of a previously requested extension to her contract would not be impacted by her work injury.

[12] There was a dispute about ALRM access and distribution of information contained in the Applicant’s files.

[13] The Applicant advised of her intention to resume work on Monday, 30 November 2020. On 26 November 2020, Ms Millar advised of concerns in respect of the proposed return to work relating to capacity.

[14] It appears that the Applicant has previously arranged Annual Leave for the month of January 2021 however on 26 November 2020, the Applicant advised she would return from Annual Leave on 18 January 2021.

[15] The Applicant continued to express concerns about the access to her personal files.

[16] On 3 December 2020, a further Workers Compensation case conference was conducted. There is a dispute over what was agreed. Mr Larkin contends it was agreed that the Applicant would work from home. The Applicant denies that and contends it was her priority to work out of the ALRM office. A return to work plan dated 3 December 2020 was submitted. 2 The plan refers to ALRM’s concerns about having two CEOs in the same workplace and its view that the Applicant could complete her duties from home. The plan refers to a further meeting to occur on 7 December 2020, but does not provide any further information about where the Applicant’s work would be performed. ALRM’s legal representative expressed a view that the Applicant would take a long time to recover and should not yet return to perform duties at the ALRM office.

[17] On 4 December 2020, Ms Miller advised the Applicant that it had determined to advertise the CEO position and invited the Applicant to apply.

[18] On 9 December 2020, Mr Bourne wrote to ALRM on behalf of the Applicant. Amongst other things, Mr Bourne advised that the Applicant would return to work (albeit for restricted hours) on 14 December 2020.

[19] Mr Larkin responded on behalf of the ALRM and stated that the Applicant should not attend for work on Monday or until the ALRM Board was satisfied that she could properly perform the whole gamut of her duties, and if this request was not complied with it would be viewed as serious and wilful misconduct.

[20] On 16 December 2020, the Applicant advised ALRM that she would work for 7 hours per day 5 days per week from the following week. Mr Bourne wrote a letter on the Applicant’s behalf advising that the direction was not lawful and/or reasonable and advised that the Applicant would attend a contract management meeting with the Attorney-General’s Department (AGD) on behalf of ALRM the following day. Mr Larkin instructed the Applicant not to attend the AGD meeting.

[21] On 5 January 2021, the ALRM’s return to work coordinator advised Mr Larkin that the Applicant would be ready to undertake pre-injury duties from 18 January 2021.

[22] On 11 January 2021, the Applicant’s legal representative complained that the Applicant’s return to work had been unduly delayed by ALRM and requested confirmation by 5.00 pm on 12 January 2021 that ALRM would accommodate the Applicant’s return to normal duties on a trial basis commencing on 18 January 2021.

[23] On 12 January 2021, ALRM’s legal advisors responded advising that the Applicant was on leave until 30 January 2021 and invited service of any proceedings on behalf of ALRM.

[24] On 16 February 2021, the Applicant’s legal representative corresponded, asserting that the ALRM had repudiated the Applicant’s contract of employment as a result of the following factors:

“1. ALRM refused to allow Ms Axleby to return to work following the expiration of her RTWSA/Rehabilitation Plan – the reasons given were self-serving and disingenuous.

2. ALRM insisted that Ms Axleby take leave from 18 to 31 January although she had no entitlement to leave and despite her request that she be allowed to return to work.

3. With respect to Ms Axleby’s return to work following the expiration of leave, ALRM imposed conditions which make a continuing working relationship untenable. Those conditions include, but are not limited to:-

3.1 Appointing Chris Larkin as a de-facto CEO in place of Ms Axleby and redirecting substantive aspects of the role of CEO to him rather than Ms Axleby.

3.2 Removing Ms Axleby from her office.

3.3 Removing Ms Axleby’s access to the CEO car-park at the ALRM premises.

3.4 Segregating Ms Axleby from other staff without any valid reason, resulting in inevitable disempowerment, humiliation and distress.

3.5 Requiring Ms Axleby to undertake as a matter of urgency matters which should have been undertaken by the Acting CEO and Acting Board Chair during her periods of absence both on workers compensation and as imposed by ALRM when she would have otherwise have returned to work.

3.6 Advising staff members on Friday 29 January 2021 that Ms Axleby would not be resuming her role as CEO.

3.7 Advising participants in a Natsils meeting on 8 February 2021, inter alia, that Ms Axleby had been absent from work for a prolonged period and will not be returning to her role as CEO and that ALRM was actively seeking to recruit her replacement.

These matters collectively constitute a repudiation by ALRM of Ms Axleby’s contract of employment as its’ CEO. Ms Axleby hereby elects to treat the repudiation as a termination of her employment at the instigation of ALRM effective forthwith.”

[25] On 22 February 2021, the ALRM rejected this position.

Evidence

[26] Ms Axleby submitted a statement 3 and a supplementary statement4 but was not required to be cross-examined. No issues of credit arise.

[27] Mr Larkin (Acting Chief Executive Officer) submitted a statement 5 and gave evidence.

[28] Mr Larkin was a less than impressive witness and I found that his contention that communications in late January 2021 (which referred to the handing over of work to the Applicant’s successor), 6 and in his letter dated 28 January 2021 (which referred to a new CEO), did not imply that the Applicant was not going to be employed beyond the expiration of her fixed term contract was absurd. I have interpreted the content of Mr Larkin’s communications with caution.

[29] The parties agreed that payments of wages and superannuation were made to the Applicant on 2, 16 February and 2, 16 March as detailed in paragraph 8 of the Respondent’s submissions. Ms Axleby contends these payments were made in accord with the Workers Compensation obligations.

Factual disputes

[30] There is little by way of factual disputes in this matter. However, on a credit basis, I am not persuaded that agreement was reached for the Applicant to work from home on 3 December 2020, and I find that in late January 2021 the ALRM determined not to re-employ the Applicant beyond the expiration of her fixed term contract.

[31] The key matter for determination is whether the factual circumstances imposed on the Applicant constitute a repudiation of her contract of employment.

Consideration

[32] The test for determining whether a contract has been repudiated by the employer is whether the conduct of the employer, when assessed objectively, displayed an intention to no longer be bound by the contract. 7

[33] In Earney v Australian Property Investment Strategic Pty Ltd 8, Hargrave J summarises the legal principles which are to be considered when assessing whether there has been repudiation of an employment contract, as determined by Ross J in Whittaker v Unisys Australia Pty Ltd9:

“…

(2) It is not necessary to prove a subjective intention to repudiate. The test is an objective one.

(3) Whether there has been repudiation is a question of fact.

(4) Repudiation is not to be inferred lightly. It is a serious matter.

(5) Repudiation may be evidenced by a single act or by an accumulation of conduct in circumstances where no individual act on its own constitutes a repudiation.

(6) Repudiation does not bring an end to a contract. It is necessary for the innocent party to elect to accept the repudiation.

(7) Repudiatory conduct may be ‘cured’ by the party in breach, but only prior to the acceptance of the repudiation. Accordingly, once the innocent party has elected to terminate the contract for breach, it cannot thereafter be cured.

(8) In the context of employment contracts, a significant diminution in remuneration, status or responsibility may constitute a repudiation. Whether or not this is so is a question of fact in each case.

(9) There may be a significant diminution in status or responsibility, even where the employee retains the same remuneration and title.

(10) However, there are circumstances where a considerable change in the nature of an employee’s duties may not amount to a repudiation. Although an employer cannot usually force changes of status and responsibility upon an employee, the circumstances of a particular case may permit a degree of flexibility in approach, with each party being required to provide ‘some reasonable give and take’. In such cases, repudiation may not be inferred in the absence of serious non-consensual intrusions upon the status or responsibilities of the employee.”

(references removed)

[34] Ms Axleby contends that the conduct detailed in the letter sent by her representative on 16 February 21 (with the exception of paragraph 3.3) is sufficient to demonstrate repudiation.

[35] ALRM contend that its actions were reasonable and necessary to ensure that its needs continued to be met in the face of Ms Axleby’s medical condition.

[36] In my view the ALRM was entitled to make such adjustments to ensure its needs were met. This included the appointment of an Acting CEO and the reallocation of work. I can appreciate the ALRM’s desire to not have two CEOs and that to do so may be confusing to internal and external stakeholders. I do not believe that requiring Ms Axleby to work from home was unreasonable. I can also understand Ms Axleby’s dismay at not being able to access her office and being required to use an alternative room. I do not believe the request for Ms Axleby to undertake certain work was inconsistent with her employment contract.

[37] In my view ALRM had determined that Ms Axleby was not going to be offered a further contract by late January 2021. Despite ALRM’s lack of candour towards a long serving employee, this does not form the basis of a repudiation. The alleged advice to staff on 29 January 2021 and advice at the Natsils meeting on 8 February 2021 that Ms Axleby would not be returning appears consistent with ALRM’s decision not to renew her contract.

[38] I have reviewed the further submissions made by Ms Axleby (and ALRM’s response) on the impact of ‘garden leave’. I do not believe that in these circumstances that ALRM’s decision not to require Ms Axleby to perform work constituted a repudiation.

[39] In my view, Ms Axleby’s case taken at its highest, does not meet the threshold for repudiation when considering the principles detailed in Earney v Australian Property Investment Strategic Pty Ltd.

[40] I am unable to find that ALRM’s conduct, when assessed objectively, displayed an intention to no longer be bound by its contract with Ms Axleby. As a result of this finding, I do not need to examine if Ms Axleby continued to receive the benefits of her contract of employment.

[41] I find that Ms Axleby was not dismissed but that her employment ceased when her fixed term contract expired.

[42] Accordingly, the s.365 Application must be dismissed for want of jurisdiction.

COMMISSIONER

Appearances:

T Bourne for the Applicant

E Theodore for the Respondent

Hearing details:

2021.
Adelaide:
May 25

Printed by authority of the Commonwealth Government Printer

<PR730155>

 1 [2020] FCAFC 152 at [51].

 2   Exhibit R2 pages 28-34

 3   Exhibit A1

 4   Exhibit A2

 5   Exhibit R1

 6   Page 44 of Exhibit R2

 7   Marwa Elgammal v BlackRange Wealth Management Pty Ltd CAN 092 380 348 T/A Commonwealth Financial Planning [2011] FWAFC 4038 at [13].

 8 [2010] VSC 621 at [77].

 9 (2010) 192 IR 311.