[2016] FWC 1210

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 394 - Application for unfair dismissal remedy

Christine Libbis
v
Pambula Merimbula Golf Club Limited
(U2015/6383)

DEPUTY PRESIDENT SAMS

SYDNEY, 25 FEBRUARY 2016

Unfair dismissal application – long serving Club employee – agreement between employee and the Club – alleged dismissal – employee request to step down from Supervisor duties – application for part time office position – combined office/Supervisor role – no loss of grade or salary – interim arrangement until new financial year – whether agreement to move to part time employment – whether employee aware of part time reversion – whether loss of supervisory functions constituted a demotion – whether demotion a termination of employment at the employer’s initiative – whether employee on a fixed term contract – employee worked combined position without complaint – restructuring of Club’s operations – redundancy of Supervisor roles – employee not offered redundancy – denial of agreement to relinquish Supervisor duties – conflict of evidence – employee’s evidence not credible – Club’s evidence preferred – failure to mention crucial conversations and events adverse to employee’s interests – failure to call relevant witness – Jones v Dunkel inference – overwhelming evidence employee had accepted agreement to work part time – little merit in application – employee’s agreement to revert to part time work binding on the parties – no dismissal of employee – Commission has no jurisdiction to determine unfair dismissal application – matter concluded.

BACKGROUND

[1] Situated on the far South Coast of New South Wales, Pambula Merimbula Golf Club (the ‘Club’) is a small golf and club facility employing 46 employees (as at July 2015). Ms Christine Libbis (the ‘applicant’) has been a long-serving employee of the Club for over 25 years and until relatively recently, was a full time Supervisor employed at Grade 5 under the Pambula Merimbula Golf Club Limited Enterprise Agreement 2014-2018 [AE410903] (the ‘Agreement’). Ms Libbis converted to part time work in July 2015. It is the circumstances leading up to this alteration to her employment status which forms the basis of the present dispute between Ms Libbis and the Club.

[2] Notwithstanding that this matter comes before the Fair Work Commission (the ‘Commission’) as an unfair dismissal application, pursuant to s 394 of the Fair Work Act 2099 (the ‘Act’), Ms Libbis has not been dismissed by the Club and continues to be employed on a part time basis (at least until the time of the hearing).

[3] The parties’ respective positions may be summarised this way. United Voice (the ‘Union’) argued on Ms Libbis’ behalf that, as she had never agreed to relinquish her full time Supervisor duties, the Club’s ‘unilateral’ decision in May 2015 to convert her employment to part time, therefore constituted a dismissal, which was ‘harsh, unjust and unreasonable’, within the meaning of s 387 of the Act.

[4] Countering this, the Club’s position was that Ms Libbis’ part time position arose from the Club’s agreement to her own request in November 2014, which the Club seeks to enforce. In the Club’s view, there was no dismissal of Ms Libbis, she continues to work at the Club, as was agreed and consequently, there was no jurisdiction for the Commission to deal with the matter as an unfair dismissal application (ss 385(a), 386).

[5] While attempts were made to settle the matter, these proved unsuccessful and the application was ultimately listed for arbitration in Eden, New South Wales on 12 and 13 November 2015 and then in Sydney on 7 December 2015. At the hearing, Mr C Acev from the Union represented Ms Libbis and Mr C Langton and Ms L Pike of Clubs NSW appeared for the Club.

THE EVIDENCE

[6] The following persons gave written and/or oral evidence in the proceeding:

Ms Libbis;

Ms Michelle Vernon, former General Manager of the Club

Ms Tania Boyd, Office Administrator for the Club;

Mr Robert Pritchard, a Director of the Club;

Mr David Boag, Vice President and Director of the Club;

Ms Kristie Stokan, Administration/Payroll Officer for the Club; and

Mr Ben Potter, Operations Supervisor for the Club.

Ms Christine Libbis

[7] In written evidence, Ms Libbis said that she had been casually employed by the Club as a Bar and Gaming Attendant in December 1990 and gained full time employment in 1993. In 2005, she successfully applied for a full time Supervisor role (actually 2002). This role involved preparing rosters, reconciling float monies at the end of shift, being responsible for Club operations and the oversight of staff while she was on duty. She worked a four weekly rotating roster, with three other Supervisors. A three week rotating roster was implemented when the number of Supervisors was reduced to three a few years later. As at 1 July 2015, the Club continued to employ three full time Bar Supervisors: Mr Ben Potter, Mr Max Whitby and herself.

[8] It was Ms Libbis’s evidence that while she was on annual leave in November 2014, the Club’s management posted an internal memo, which was in the following terms:

‘Hi Everyone,

We have recently been trialling someone in the office in the hope of replacing our Payroll Officer Maree. We have decided to look at shifting the payroll duties to a current office staff member, opening up some office hours. We are interested in offering our current staff the first option to apply for the position which would be three days a week and approximately twenty hours a week times being Mondays to Wednesdays 7:30am starts. The position would also include being able to perform opening up duties both Monday to Friday with other office staff, and infrequent weekend work performing opening up duties by themselves.

The job will entail cash reconciliation of pervious days [sic] floats including TAB and Keno, preparation of banking and floats, ATM reconciliation, and all paperwork with the above. Daily poker machine data entry and reconciliation. Reconciliation of vouchers and other internal sections. General office administration including letter writing, using the in house Computer Magic Systems including poker machines, cashman and membership,, entering of invoices and basic input accounting functions; The job requires excellent customer service skills both face to face and on the telephone.

Should a current staff member be successful in obtaining the position, they would still be able to work behind the bar in that capacity outside of the office hours.

Please make application in writing along with your Curriculum Vitae by 10^th November 2014.’

[9] Ms Libbis stated that when she returned from leave, Ms Rachel Collette, a Permanent Part Time employee of the Club, informed her of the circulation of the above memo. Ms Libbis was interested in the position, but Ms Collette did not have a copy of the memo. When she asked Ms Tania Boyd, Office Administrator for a copy, Ms Boyd told her that Ms Michelle Vernon, General Manager, had advised that applications for the position were closed. Ms Libbis protested that this was not fair and after a further five minutes, Ms Boyd told her that she could apply, but her application had to be lodged that day. Ms Libbis provided a handwritten expression of interest dated 25 November 2014, in the following terms:

‘To Whom it may concern

I wish to apply for the office position as advertised internally within the Club.
In the past I have provided relief office duties and have a solid understanding of the majority of job tasks involved.
The frame work for my transfer to office duties or a combination of office and Bar duties would need to be a subject of discussion during the interview process should I be successfull [sic] in gaining an interview.
I look forward to the possibility of an interview in the future.’

[10] Ms Libbis was interviewed for the position on 5 December 2014 by Ms Boyd and Ms Vernon. Ms Libbis put to them that she had the skills to work in the office, as she had performed some of these duties when employees had been on parental leave. Ms Boyd asked her some technical questions about bookkeeping, some of which she could not answer. Ms Vernon told her that they would get back to her within a day. She subsequently telephoned her at home to advise that her application had been successful.

[11] Ms Libbis said that she did not receive any other formal acknowledgement of these arrangements and continued to work in her full time Supervisor role. She had been aware from around October 2014, that Ms Maree Ballantyne, who worked in the office, was resigning in January 2015. Ms Libbis said that in early February 2015, Ms Boyd told her that she would be working in the office on Monday, Tuesday and Wednesday. She continued to work two rostered Bar Supervisor shifts on the rotating roster.

[12] Ms Libbis recalled that some time around February 2015, Mr Peter McMullen, the Club’s President, asked her how she liked working in the office. She replied that she had not received written confirmation of the office work or her duties. On a couple of occasions after this, he asked her if she had been ‘given anything’ (meaning in writing). She had replied that she had not. It was Ms Libbis’ further evidence that some time towards the end of April 2015, Mr McMullen had approached her while she was working in the office. Mr Pritchard was with him. Mr McMullen had asked her how things were going. She had replied, ‘Good, I don’t mind the office and I’m glad I can still do shifts in the bar.’ Ms Libbis specifically denied that she had said in February 2015 that she would step down on 1 June 2015.

[13] Ms Libbis received a letter from Ms Vernon, dated 29 April 2015, which advised that the Board of Directors and Senior Management of the Club intended to make major changes to the Club’s structure, which would result in changes to rosters, ‘including the possibility of redundancies’. The letter invited her to a meeting at the Club on Thursday 7 May 2015 to discuss the restructure.

[14] Ms Libbis said that at the meeting on 7 May 2015, Mr Robert Pritchard (a Board Member), Mr David Boag (Vice President) and Ms Vernon identified themselves as the Club’s Restructuring Committee. Mr Pritchard had advised that there would only be one Supervisor, there would be fewer staff generally and employees would be ‘multiskilled’. A draft roster was given to staff. Ms Libbis had stated that she was ‘happy to take a redundancy package’. However, she was told by Mr Pritchard that this did not involve her and that staff directly affected would be spoken to prior to commencement of the new arrangements. Ms Libbis and another staff member, Mr Andrew Borycz raised their concerns with Mr Pritchard as to the impact on staffing, revenue and service.

[15] Ms Libbis said that on 26 May 2015, Ms Vernon placed a document on her desk which was expressed in the following terms:

‘To Whom It May Concern,

This letter is to confirm that both parties are aware and agree to the following details:

I Christine Libbis, having stated in February 2015 that I would step down as a part time Supervisor within six months, or as the Club saw fit, am happy and agree to relinquish my duties as Supervisor on 1^st June 2015. I will however make myself available as bar steward as and when agreed to by both myself and the Club as they may require. This will not affect my role as a three day part time Administrator in the office.

[space for signature of Ms Libbis and date]

I Michelle Vernon, as General Manager of the Pambula Merimbula Golf Club understand that Christine has offered to step down as Supervisor on 1^st June 2015. This will not affect her position as a three day part time Administrator in the office and she has offered to work as a bar steward and when agreed to by both the Club and Christine Libbis as they required [sic].

[space for signature of Ms Vernon and date; space for signature of witness and date]’

Ms Vernon requested that she sign the document. She responded by indicating that she would not sign it before taking it home, reading it and discussing it with her partner. Ms Vernon requested she email it back to her that night. When Ms Vernon left the room, she said to Ms Boyd and Ms Kirsty Stokan that she would never sign this document because its contents were not true. When approached again by Ms Vernon on 27 May and 2 June to sign the document, Ms Libbis told her that she would not be signing it.

[16] Ms Libbis believed that as she was a Full Time Level 5 employee at the time, the redundancy provisions of the Agreement were applicable to her. Ms Libbis annexed to her statement a copy of a handwritten document dated 9 June 2015 expressing her interest in being paid a redundancy package. In response, Ms Libbis received a letter from Ms Vernon, dated 18 June 2015, in the following terms:

‘Dear Christine,

We refer to your letter dated 9^th June 2015 in relation to your position at the Club.

We note that you made a request at the Pambula Merimbua Golf Club in December 2015, regarding a gradual transfer from your full-time Supervisor position, to a part-time Administration position at the Club, upon obtaining the Part Time Office Position. Upon acceptance of this position you again indicated that whilst you would continue performing two days as Supervisor, that you would look at stepping down into the part time position and away from the supervisor work in June 2015. The Club noted that it could accommodate this request, and you started in the Club’s Administration Department thereafter.

At a meeting on 6^th May 2015 we had agreed that this date would be 9^th June 2015, however that you would continue to make yourself available for bar roster work after this time. During the 7^th May 2015 meeting, you advised the Club of your reasons for moving away from the Supervisors position were [sic] your concerns in your ability to perform the role of Supervisor and this was a catalyst for taking on the part time administration role.

Your employment was bilaterally changed to a part-time administration position due to your formal request for this change, and as such a redundancy payment is not applicable.’

[17] Ms Libbis noted that after 25 November 2014, her designation and remuneration had remained consistent with that of a Level 5 Supervisor. She expressly disputed that:

she had made a request in December 2014 for a ‘gradual transfer’ from her full time Supervisor role to a part time administration role;

there had been a discussion or agreement in relation to her stepping down into a part time position at any time;

she had confirmed her agreement to move from the full time Bar Supervisor position to the part time administration role at the meeting on 7 May 2015; and

she had expressed concerns about her ability to perform her role as Bar Supervisor, although she acknowledged that when she expressed interest in a redundancy at the meeting of 7 May 2015, she had said that this was because the cellar duties of the Bar Supervisor’s role were becoming more physically demanding.

[18] Ms Libbis deposed that on 1 July 2015, Ms Kristy Stokan, apologetically advised her that she had been directed to terminate her as a full time Supervisor and reinstate her as a part time permanent employee. She responded that she understood that Ms Stokan had to act as directed. From this point on, Ms Libbis was no longer required to work the rostered Bar Supervisor shifts and her payslips identified her as a part time employee. However, she would work bar shifts, if there was a function. Ms Libbis believed that her employment as a Level 5 full time Bar Supervisor had been terminated at this time.

[19] Ms Libbis understood that after 1 July 2015, another Bar Supervisor, Mr Max Whitby, was paid an amount of redundancy pay, reclassified as a permanent part time employee and dropped from a Level 5 classification to Level 3. Mr Ben Potter, the other Bar Supervisor was re-appointed as the Club’s Operations Supervisor.

[20] In further written evidence, Ms Libbis referred to the statement of Ms Vernon. She denied discussing a fixed term contract with her or that she had agreed to a date for the commencement of her office duties, during their meeting of 5 December 2014. There was no ‘clear verbal understanding’ about moving permanently to part time employment. Despite her repeated requests, she had never been provided with a job description by Ms Vernon.

[21] In cross examination, Ms Libbis agreed that it was possible that she had commenced working as a full time Supervisor in 2002, rather than 2005. At the time, she had received a contract of her employment, but it had not been tendered in evidence. However, she had not received a written contract when she commenced employment with the Club in 1990. She was unaware of whether Mr Whitby, Mr Potter or any other staff had had written contracts of employment for their roles, although she believed the greens staff had written contracts. Ms Libbis acknowledged that the Club was small, but she emphasised that staff rosters had to be physically changed and signed off by a Supervisor.

[22] Ms Libbis said that she enjoyed her work as a Supervisor, but when the Cellarman was made redundant, she realised that she would struggle with the physical demands of this new aspect of the job. She was looking to reduce the physical side of the work on a day to day basis, rather than her hours, which she had wanted to maintain. She also noted that it would mean more day shift work.

[23] Ms Libbis insisted that she had not actually seen the memo circulated by the Club advertising for the part time office role (see para [8]), until after she applied for redundancy. Nevertheless, she was informed of its contents by three people, none of whom had referred to the role being part time. She had understood that the role was office work and that she would also be working in the bar. Ms Libbis did not accept that the reference in her expression of interest (see para [9]) to her ‘transfer to office duties or a combination of office and Bar duties’ meant that she wanted to fully transfer to office duties at some point. While her wording was poorly expressed, she had meant she wished to work full time in a combination of office and bar duties. Ms Vernon had told her during the interview on 5 December 2014 that the specifics about changes to working hours in the office and the bar, would be discussed at a later date. Ms Vernon had certainly not referred to specific changes in July 2015 or to her transferring fully to office duties at that time.

[24] In further evidence, Ms Libbis agreed that during the interview, she had referred to wanting to try something new, but this referred to working both front of house and back of house. She had not said she wanted to cease full time Supervisor work and drop back to part time or casual work. She agreed that she had referred to her age as a reason for wanting to change her role and had said she had wanted to keep working as a Bar Supervisor. Ms Libbis also recalled Ms Vernon referring to her training another person in the Bar, but she had not given an opinion as to who might be suitable. She emphasised she had not been given training or provided with a start date. When she had said to Ms Boyd that she had wanted to ‘step down’, she had been referring to the physical aspect of the job. She recalled most of the interview concerned discussion about bookkeeping skills. She emphasised that there had been no discussion of her ending her full time work and starting part time office work in July 2015. She could not explain why a file note, made by Ms Vernon of this conversation at the time, appeared to suggest otherwise.

[25] Ms Libbis’ further evidence was that shortly after the interview, Ms Vernon called her and said that while other applicants were better qualified and had broader experience, the Club had decided to offer her the job. She asked Ms Libbis if she had any questions and she replied no. Ms Vernon then said that they would discuss things at a later date and the call ended. In response to a question from me, Ms Libbis said that there was no discussion at the meeting of her salary, but she assumed she would stay at the same level. The reference in her statement to her being ‘assigned part time work in the office’ was worded incorrectly. There had been no understanding, at that time, that her role would be partly office work and partly Supervisor work from February 2015 or after Ms Ballantyne resigned. She actually had been notified of this arrangement two or three days before she started performing the new duties.

[26] Ms Libbis denied having told Mr Boag that it would suit her to work permanent part time. She had just said that she enjoyed working in the office. This conversation had occurred in January 2015, rather than December 2014.

[27] Ms Libbis agreed with the proposition that Ms Vernon was often lax in recording employment arrangements in writing. She had not really thought about why she was asked to complete a position description in February 2015. There was never any discussion about an agreement to step down as Supervisor in February 2015; rather, she had asked what was happening with the office work being confirmed in writing. Ms Libbis insisted that Ms Vernon had never asked her to confirm the agreement in writing.

[28] Ms Libbis acknowledged that she had attended a staff meeting in mid-April where upcoming changes at the Club were discussed, including the Supervisors taking on most of the cellar duties. She had informed the meeting that she was finding it difficult to perform the heavy physical work involved in the cellar duties. As a result, she would be performing office work, as well as bar work, thereby minimising her manual physical workload.

[29] Ms Libbis said that Ms Vernon had not told her that the restructure would not involve removing her role until after the meeting of 7 May 2015. She agreed Ms Vernon had asked her to put something in writing about the move to office work. Ms Vernon had not suggested that 1 June 2015 was an appropriate time for her move to a part time arrangement.

[30] Ms Libbis could not recall telling Ms Boyd, on or after 6 May 2015 that there would be a problem with her moving to part time employment on 1 June 2015, due to the Jazz Festival long weekend around 10 June 2015. Nor could she recall Ms Vernon suggesting that her start date be postponed until 9 June 2015. She had never agreed to transfer to part time employment on 9 June 2015.

[31] Ms Libbis denied that there had been a discussion on 6 May 2015 with Ms Boyd and Ms Vernon about her signing the acknowledgement document (see para [15]). It had been provided to her on 26 May 2015, when Ms Vernon dropped it on her desk and asked her to sign it. Nor could she recall discussing this document with Ms Boyd some time after 7 May 2015, but she may have done so at a later time. She specifically denied having said to Ms Boyd or Ms Stokan that she was not happy to sign the document, as it would affect her tax liabilities. While she could not recall a meeting on 6 May 2015, she had raised her long service and annual leave entitlements in the staff meeting on 7 May 2015. She denied asking Ms Vernon in late May 2015 about her long service leave, when she moved to part time work.

[32] Ms Libbis could not recall saying at an earlier Supervisors’ meeting on 7 May 2015 that the restructure would not affect her because she would be working part time in the office from the end of June 2015. She had said she was already committed to doing part time bar work and part time office work. She could not recall Ms Vernon inviting only Mr Potter and Mr Whitby to apply for the single Operations Supervisor role on the basis that she had already accepted to step down to part time office work. However, she could recall it being said that there would only be one Supervisor. She believed that Mr Potter and Mr Whitby had been invited to apply for this role at a different meeting at a later date. She had never told Mr Potter that he was better suited for this role. She had not been aware of Mr Whitby and Mr Potter being interviewed for their roles until after the interviews were completed. Mr Whitby had called her to seek her advice when he was made redundant, but she could not recall the exact date.

[33] Ms Libbis was asked about the general staff meeting on 7 May 2015. She could not recall Ms Vernon telling the staff that she would be moving to part time employment in the office from June 2015. It was merely said that she would be working some shifts in the office. When she had offered to take a voluntary redundancy, some of the staff in the room had laughed. Specific redundancies were not identified. She just volunteered, when Mr Pritchard had said discussions would be held with affected employees. Staff were invited to provide feedback and Ms Libbis but held put a response in Mr Boag’s pigeonhole, but had not received a reply. She had also provided some suggestions to Mr Boag in February 2015 in relation to a proposed restructure regarding the Supervisors’ roles.

[34] Ms Libbis claimed that she had provided a formal request for redundancy and put it in the President’s pigeonhole and on Ms Vernon’s mailing list, but she had not kept a copy of it. She agreed she had not spoken to anyone about seeking a redundancy between 7 May and 9 June 2015. She conceded she had not considered being involved in the redundancy process, until after Mr Whitby called her and told her that he had been made redundant. While she acknowledged that her duties had changed from February 2015, she felt that she had been excluded from the redundancy processes under the Agreement.

[35] Ms Libbis agreed that following her formal request for redundancy, a meeting was scheduled with two Board members (Mr Pritchard and Mr Boag) and Ms Boyd on 12 June 2016. At the meeting, she was told that she was not entitled to redundancy because she had previously agreed to take part time employment from July 2015. She attended a further meeting on 30 June 2015 with Ms Vernon and Ms Lilly Proctor from the Union. She could not say why she had not referred to this meeting in her statement evidence. However, she had not taken any notes of the meeting.

[36] Ms Libbis conceded that it was incorrect that after 1 July 2015, she only worked in the bar when there were functions, but the majority of her bar work was for functions. In response to a question from me, Ms Libbis said she thought she was working 28 to 30 hours per week, but sometimes it could have been an average of 35 hours per week.

[37] In re-examination, Ms Libbis stated that she would have expected her employer to keep an accurate record of her employment conditions. She observed that if employees wanted to change shifts, they were required to physically sign a document stating that this was the case.

[38] Ms Libbis said that she had prepared her expression of interest in relation to the office work on the same day that she was told about the memo. She had a ‘very small’curriculum vitae prepared at home which she could call on at a moment’s notice.

[39] Ms Libbis said that after 5 December 2014, she continued to perform the same duties as Bar Supervisor. As of 5 February 2015, she was working 38 hours per week. She acknowledged that her classification, hourly rate and payroll number remained the same.

[40] Ms Libbis said that she had not seen a copy of the file notes taken by Ms Vernon in the 5 December 2014 meeting. There had been no discussion about her hours of work changing or a new job description. Ms Ballantyne had previously worked in the office and when she resigned, her duties were divided between herself and Ms Stokan. However, she had not been told of a date on which she would be required to resign.

[41] Ms Libbis confirmed that she had repeatedly asked for confirmation of the part time arrangement, and it was not forthcoming. She believed it was not for her to confirm the arrangement in writing, which was why she had not provided her own written confirmation to the Club. The document, dated 6 May 2015, set out that she would be relinquishing her Supervisor duties on 1 June 2015, but this did not occur. Nor did it occur on 9 June after the Jazz Festival weekend.

[42] Ms Libbis said that at the meeting on 7 May, the names of the people to be made redundant were not identified. Nor were amended rosters or details of a new structure provided. It was just said that the Restructuring Committee would be discussing possible redundancies with the affected persons.

For the Club

Ms Michelle Vernon

[43] Ms Vernon was the General Manager of the Club between March 2012 and September 2015 and was responsible for the overall management of the Club.

[44] In written evidence, Ms Vernon explained that following advice in late 2014 from the Club’s Payroll Officer, Ms Ballantyne, that she would be resigning in January 2015 and a failed trial period of an externally sourced employee to perform these duties, Ms Vernon and Ms Boyd discussed allocating the payroll duties to the existing Administration Officer, Ms Kristie Stokan. This left an additional part time vacancy in the office. This proposal was approved by the Club’s Board at a meeting on 31 October 2014 and the vacancy was advertised by way of an internal memo (see para [8]).

[45] Ms Vernon said that on 24 November 2014, Ms Boyd approached her to advise that Ms Libbis was interested in applying for the part time role. Ms Vernon agreed to accept a late application from Ms Libbis. The next day, Ms Libbis told her that she did not have a CV. However, Ms Vernon said that it would be unnecessary, given her long period of employment with the Club. On 26 November 2014, Ms Vernon received Ms Libbis’s application, dated 25 November 2014 (see para [9] above) and an interview was scheduled for 5 December 2014.

[46] It was Ms Vernon’s evidence that at a Board meeting on 24 November 2014, Mr Robert Pritchard, a Director of the Club sought, and was granted permission to review the Club’s structure, including the duties of individual roles, with a view to making changes that might benefit the Club’s poor financial outlook. Mr Pritchard requested that no further changes to staff structure take place in the meantime. Ms Vernon was not involved in the review as her own role was also being evaluated. Minutes annexed to Ms Vernon’s statement record that it was resolved that ‘any decisions regarding the Club’s staffing structure should be held in abeyance.’

[47] Ms Vernon said that two other employees had applied for the part time office role. However, one of them withdrew from the process. On the morning of 5 December 2014, Ms Vernon and Ms Boyd conducted interviews with Ms Rachel Collett and Ms Libbis. Ms Vernon recorded the conversation with Ms Libbis in words to the effect of the following:

Ms Boyd:	The position is a part time office admin position, approximately 20 hours and it would encapsulate general office administration duties as well as some basic financial data input and dependent on the successful candidate’s skills, more hours may be required during busy periods of the year, such as Week of Golf and end of year. Can you tell us why you’re interested in applying?
Ms Libbis:	I have worked here at the Club for 25 years and made my way up to being a supervisor and I would like to try something new.
Ms Vernon:	Where do you see yourself five years from now?
Ms Libbis:	Still working here. In July 2015 I would like to end full-time supervisors work and drop back to part-time or casual. I would miss the customers so if I got this job, and I could still work on the floor every so often, that would keep me in contact.
Ms Libbis:	This shouldn’t be a problem and would suit the Club very well.
Ms Boyd:	I agree.

[48] Ms Libbis then answered a series of questions from herself and Ms Boyd about her work attributes, style, experience and skills. She was also asked a number of technical questions about bookkeeping. A discussion about hours of work took place to the effect of the following.

Ms Libbis:	What sort of work hours and days would the job be?
Ms Boyd:	The office hours would be twenty to twenty five hours a week Monday, Tuesday and Wednesday, with periods that it would increase, such as Week of Golf.
Ms Vernon:	We could definitely accommodate you working these hours in the office and the rest in the bar up until July, with looking to making you part time after that in the office, and yes we could utilise you in the bar when needed. This would work well for both parties.
Ms Boyd:	Moving into this position, how do you see it working? Would you prefer a straight roster?
Ms Libbis:	I would prefer working the beginning not working five straight days but a rotation in the bar.

[49] Ms Boyd and Ms Vernon agreed to this and Ms Libbis went on to say:

Ms Libbis:	I would like to keep my hand in the bar by taking some shifts in addition to part time hours. I would be happy to look at stepping down in July or at a time that suited the Club.
Ms Vernon:	If you were successful in gaining the part-time position, and with you only working part time hours in the bar, we would need to look at potentially training another staff member as a Supervisor.

[50] After some discussion of an appropriate replacement for Ms Libbis as a Supervisor, they then discussed scheduling of the commencement of the part time office role, in words to the following effect:

Ms Vernon:	The position would be required to start in February on Marie leaving at the end of January, but if we were able to fit in some training during January we would try to do this. Also, this job is a Level 5 under the Club’s EA, the same as what you are already on as a Supervisor and all work performed would be under this Level no matter what the work was.
Ms Boyd:	Various tasks that would be performed however would depend on how quickly the successful applicant could be trained up and what their specific skill set was.
Ms Vernon:	We would like to make a decision as soon as possible. I will contact you as soon as possible. Thank you for attending.

[51] Ms Vernon and Ms Boyd agreed that Ms Libbis could continue to work full-time in both the office and in the bar until the end of June 2015, or some other date as agreed between the parties. Ms Vernon told Ms Boyd that she would contact the candidates to advise them of the outcome and later that day, she telephoned Ms Libbis and a conversation took place in words to the following effect:

Ms Vernon:	Hi Chris, I would just like to inform you that the Club has made a decision in regard to the part-time admin position, and I’d like to congratulate you on and offer you this position. In addition, we would be more than happy for you to continue on in your supervisor role part-time, thereby having you continue to work at 38 hours per week, and also happy for you to step down from your supervisor role in July and become part time then. We would also be more than happy at this time for you to continue casual hours in the bar as required.
Applicant:	That’s great.
Ms Vernon:	Do you have any questions?
Applicant:	No.
Ms Vernon:	We can certainly talk more about any queries that you might have in the future if necessary.

[52] Ms Vernon provided her General Manager’s Report to the Board on 15 December 2014. A redacted copy of this report was annexed to her statement. Amongst other things, she advised the Board that following the departure of Ms Ballantyne, and Ms Stokan taking on the payroll duties:

‘This Office Position has now been filled. We had two internal interviews for the office position after one person pulled out. All had strong skills in the area. We have offered the part time position to Chris Libbis. Whilst doing part time work in the office, she will continue to work in the bar, and will eventually wind down the hours out there and as supervisor, allowing the club to train up a supervisor. Maree will be with the Club until the end of January.’

[53] Ms Vernon said that on 8 January 2015, she attended part of a Board Planning Day convened to discuss possible future changes of the Club. She gave a presentation on the Club specifically and the industry generally and made some recommendations about the Club’s general operations. There was no discussion as to staffing, although an option to run the Club without a General Manager was discussed. Ms Vernon believed the general staff were aware that the Board and management of the Club were examining cost-saving measures, as there had been a number of meetings over the previous 16 months about the Club’s financial state.

[54] On 29 January 2015, Ms Vernon tabled a General Manager’s Report at a Board meeting. She annexed a redacted copy of this document, which discussed the job analysis questionnaire and the job description template distributed to employees, which were returnable on 10 January 2015. It also mentioned changes in rostering due to Ms Libbis’s move to the office. In the meeting, the names of two employees were discussed as replacements for Ms Libbis in the bar. Ms Vernon also annexed a copy of the roster from Thursday 29 January to Wednesday 4 February, which disclosed that Ms Libbis worked two days in the bar and three in the office.

[55] Ms Vernon recalled meeting with Ms Libbis and Ms Boyd some time in February 2015. They discussed Ms Libbis’s permanent move to part time employment in June or July 2015, but no firm date was set. At another time in February, Mr Pritchard asked her during an informal meeting, if the agreement had been put in writing. She replied that the Club had not received anything from Ms Libbis, in writing, about her wish to move to part time employment. However, Ms Vernon believed that there was a clear verbal agreement between the parties. Ms Vernon deposed that she had asked Ms Libbis in the presence of Ms Boyd, to give her written confirmation of the arrangement on a number of occasions between February and May 2015. She also believed Ms Libbis had told a number of employees about her move to part time employment.

[56] At a Board meeting on 27 April 2015, the Restructure Committee recommended that the three Bar Supervisors be replaced with a single Operations Supervisor. This was agreed to by the Board. As Ms Libbis had already agreed to step down into a part time office role, there were only two Supervisors’ roles to be restructured into the one new role. The lack of confirmation in writing of the arrangement with Ms Libbis was mentioned at the Board meeting and Ms Vernon agreed to formalise the arrangement. She was also directed to prepare consultation documents for employees leading up to the changes at the Club. The date for the finalisation of the restructure was set for 1 July 2015.

[57] Ms Vernon subsequently provided a letter to Ms Libbis, Mr Potter and Mr Whitby about the restructure and invited them to a consultation meeting on 7 May 2015 and a separate letter was sent to all staff inviting them to another meeting on the same day. Ms Vernon said she separately reassured Ms Libbis that the restructure would not affect her office role.

[58] It was Ms Vernon’s evidence that at some time in late April, she had suggested to Ms Libbis that the date for her move to part time employment be 1 June 2015. She again asked Ms Libbis to give her something in writing. Ms Libbis did not dispute this date when it was mentioned. On 6 May 2015, she spoke to Ms Libbis again and observed that the Club had still not received anything in writing. She asked if there was a problem with the agreement. Ms Libbis replied that there was not. Ms Vernon responded by saying that it would ‘protect’ both parties if the arrangement was formalised in writing. She provided her with a document confirming the arrangement for her to sign (see para [15]). Ms Libbis asked if she could take it home to consider and discuss with her partner. Ms Vernon agreed to this, but emphasised that it should be ‘signed off sooner rather than later.’ Ms Vernon specifically denied having said, ‘I want you to sign this now.’Ms Libbis did not raise any issues with the arrangement at that time. However, shortly after this, Ms Boyd had told her that Ms Libbis had raised concerns about the start date of 1 June, as it coincided with her work on the Jazz Festival weekend. When she and Ms Boyd approached Ms Libbis, she asked Ms Libbis if the date should be changed to 9 June. Ms Libbis agreed.

[59] Ms Vernon gave evidence about an earlier meeting on 7 May 2015 with Ms Libbis, Mr Whitby, Mr Potter, two Club Directors (Mr Boag and Mr Pritchard) and herself, to discuss the Club’s restructure. Ms Libbis had been included in the meeting due to her length of tenure and current part time work in the role. An organisational chart was provided showing Ms Libbis as moving to part time employment in the office. The new role of Operations Supervisor was discussed. Mr Whitby and Mr Potter were told that they would be considered for the role of Operations Supervisor if they wished to apply and, if unsuccessful, they may be redeployed into a more junior and/or part time role.

[60] Ms Vernon had stressed that all three Supervisors were given the opportunity to make comments. Ms Libbis referred to wanting to step down due to the physical requirements of the Supervisors’ role. Redundancy was never discussed with Ms Libbis, as she had requested the part time role, effective from June 2015. At the later consultative meeting with all staff, similar points were put to the employees and it was mentioned that Ms Libbis would be working in the office part time. One staff member had raised concerns and two others had contacted her later. Ms Libbis did not raise any issues. Ms Vernon specifically denied that Ms Libbis had said that she was happy to take a redundancy package.

[61] Ms Vernon and Mr Boag had interviewed Mr Whitby and Mr Potter for the Operations Supervisor role after they expressed their interest. Mr Potter was the successful candidate and Mr Whitby was moved into a part time role and given time to consider his redundancy and long service leave entitlements. It was at this point that Ms Libbis raised the question of her own long service leave entitlements in a discussion with her and Ms Boyd. Ms Vernon had told her that her long service leave would continue to accrue, but the Club was happy to sign off on her current balance of long service leave and annual leave as a full time employee. She suggested Ms Libbis speak to the Union about her options.

[62] Ms Vernon explained that after she returned from a period of annual leave (between 10 and 16 June 2015), the Club President, Mr McMullen, told her that Ms Libbis had sent a letter to the Board seeking redundancy. She was aware that Ms Libbis had met with Mr Boag and Mr Pritchard on 12 June to discuss the issue. Ms Vernon said that Ms Libbis’s actions confused and upset her. She approached her to express her disappointment, but Ms Libbis declined to discuss the issue without a Union representative present. Ms Vernon provided a formal response on 18 June 2015 declining Ms Libbis’s request for redundancy (see para [16]). In a handwritten letter, Ms Libbis advised that a Union representative would attend the Club shortly to discuss the issue.

[63] Ms Vernon attributed Ms Libbis’s continued full-time work in both the office and as a Bar Supervisor after 9 June 2015, as an oversight on Ms Boyd’s part. When she approached Ms Boyd about the issue, Ms Boyd agreed to remedy it as a matter of urgency. She had also spoken to Mr Potter when she noticed that the rosters did not reflect the change in Ms Libbis’ role. He said he was confused as to Ms Libbis’s starting date and noted that Ms Libbis was disputing the arrangement.

[64] Ms Lilly Proctor attended at the Club on 30 June 2015. After Ms Proctor had a conversation with Ms Libbis, Ms Proctor entered Ms Vernon’s office. They had a conversation in words to the effect of the following:

Ms Vernon:	Christine clearly came to the Club in regards to moving to part-time employment, and the Club agreed to this request. Both parties have discussed this arrangement many times, and even discussed and agreed on dates for Christine to move to part-time.
Ms Proctor:	But there is nothing in writing.
Ms Vernon:	It does not need to be in writing. When the Club presented Christine with something to sign with the details as agreed to, she refused to sign it without reason.
Ms Proctor:	*Well now she’s changed her mind.*
Ms Vernon:	The Club cannot accommodate Christine changing her mind. A restructure was planned and took into account the agreed structure of the office staff and the request made by Christine. Everything was fine until the Club showed its intent to restructure the Supervisor’s positions, and after a decision had been made, then Christine requested a redundancy from the Club.
Ms Proctor:	*Well she has changed her mind.*
Ms Vernon:	As I stated before, the Club accepted the request of Chris to move to part-time, we didn’t ask her to do this, and she only decided to change her mind when she thought she could get a redundancy. No redundancy is on offer as we accepted her request to move to part time in June 2015.
Ms Proctor:	*Well she has changed her mind. And what are you going to do about it?*
Ms Vernon:	Well she doesn’t have that luxury. The Club have [sic] accepted her move to part-time and that will stand and no redundancy is on offer.
Ms Proctor	Well we will be making this formal and going to Fair Work.
Ms Vernon:	Go ahead, I am sick of this. Staff can’t just change their mind when they feel like it.
Ms Proctor:	Well she did. You will be hearing from us.
Ms Vernon:	Good afternoon. I think we are done here [emphasis added].

[65] Ms Vernon was upset with this meeting and immediately went to talk about the matter with Ms Boyd. Ms Kristy Stokan, also told her that she did not understand Ms Libbis’ change of mind, as she thought that she had requested to move to part time work and the Club had accommodated her request.

[66] In cross examination, Ms Vernon explained that, as part of a structural review, the Club had decided not to continue with a General Manager. As a result, her employment with the Club had ceased in September 2015.

[67] Ms Vernon acknowledged that Ms Libbis provided a quick handwritten expression of interest in the part time role on the same day she had become aware of it. However, Ms Vernon emphasised that she had told Ms Libbis that there was ‘no rush’ to getting it in.

[68] Ms Vernon explained that she had not provided a copy of her interview questions with her notations to Ms Libbis, as there was no reason for her to do so. She did not accept that what was put in her notes was very different from what was recorded in her General Manager’s report. She had not used the words ‘fixed term contract’ in the interview with Ms Libbis on 5 December 2014.

[69] Ms Vernon agreed that the arrangement was that after 5 December 2014, Ms Libbis would remain at Level 5, working full time, but working both office and bar shifts. This was effective from February 2015, but on the understanding that she would be stepping down later in the year. There was no fixed date for this, but Ms Libbis had suggested July 2015 in the course of the interview. The date changed after later discussions. She and Ms Boyd had suggested the date of 1 June 2015 and Ms Libbis had agreed. Ms Libbis then raised concerns about a conflict with her work in relation to the Jazz Festival Weekend and the date was changed to 9 June 2015. When she had referred in her statement to Ms Libbis stepping down to part-time in ‘June-July’, this was an inexactly expressed reference to the end of the financial year.

[70] Ms Vernon said that the Club had been unable to give Ms Libbis a letter of offer because management was unsure of her exact duties at the time. She acknowledged she was remiss in not doing this, but maintained that there was a clear verbal agreement between the Club and Ms Libbis.

[71] When Ms Vernon was shown minutes from the Board meeting of 27 April 2015. She said that the Board decided to move from the three supervisory roles (including Ms Libbis’ ‘half’ role) to the one Operations Supervisor role.

[72] Ms Vernon was asked about her comments to Ms Libbis that a written confirmation of the arrangement would ‘protect’ the parties. She responded that it would protect Ms Libbis if the Club changed its mind about her part time status and protect the Club if Ms Libbis changed her mind. She denied this was a reference to protecting the Club from an obligation to pay redundancy pay and stressed that she had not made any decisions in regards to redundancy. She simply wanted a written agreement ‘sooner rather than later’, as the Club had been waiting months for confirmation. She agreed that by this time, staff had been notified of possible redundancies in the letter advising of the proposed changes and inviting them to the meeting on 7 May. The adjacent date of the consultation meeting was a coincidence.

[73] Ms Vernon was referred to cl 50 of the Agreement dealing with redundancy. She did not agree that Ms Libbis was ‘excluded’ from redundancy; rather, she did not have to be ‘included’ as she had previously requested to move to part time work. Any redundancies affecting the Supervisor roles came a long time after this. She agreed she had given this advice to the Board, having taken advice herself from Clubs NSW. She believed she had given all of the relevant facts to Clubs NSW when seeking their advice. She agreed that her statement did not set out how she had come to her view. Ms Vernon accepted the proposition that it was Ms Libbis’s right to make an inquiry as to possible redundancy. However, she believed that her request was ‘extremely unreasonable’.

[74] Ms Vernon was shown the minutes of the meeting of 12 June (which she did not attend) and specifically the statement attributed to Mr Boag and Mr Pritchard that Ms Libbis was not entitled to redundancy and that if she was, she would be made a full time Supervisor again. She did not believe that the information in this statement was correct. She did not accept that Ms Proctor’s references to Ms Libbis ‘changing her mind’ were linked to the statement attributed to Mr Boag and Mr Pritchard.

[75] In re-examination, Ms Vernon clarified that the Club was unsure of the duties to be performed by the part time office employee, because the successful candidate’s level of financial literacy was relevant to the work they would be required to perform.

Ms Tania Boyd

[76] Ms Boyd has been employed at the Club as Office Manager since 3 August 2012 and is responsible for maintaining office systems, the supervision of office staff and the provision of financial information to Club management.

[77] In written evidence, Ms Boyd explained that Ms Ballantyne resigned effective from 28 January 2015. Ms Stokan, who already worked in the office, had taken over Ms Ballantyne’s payroll duties. As a result, there was a position vacant in the office to perform a combination of Ms Ballantyne’s non-payroll duties and the duties that Ms Stokan could no longer perform due to her taking over the payroll function. It was also anticipated that this role might involve some bookkeeping functions.

[78] Ms Boyd and Ms Vernon had decided to advertise the role internally on the basis that the staff’s existing knowledge of banking and the business would be valuable. The role was advertised on 31 October 2014 by posting a memo on noticeboards in the bar and the staff room (see para [8]). Three staff members applied. However, Ms Libbis was on annual leave at that time.

[79] Immediately prior to Ms Libbis returning from annual leave, Ms Boyd was advised by another staff member, Ms Jodi Pymble, that Ms Libbis was interested in the office role. When Ms Libbis returned, Ms Boyd apologised to her, saying that she did not realise that she was interested. She recalled Ms Libbis saying words to the effect of:

‘I have been wanting to step down, it would be earlier than I had planned. I did not plan on stepping down until July.’

Ms Boyd discussed the matter with Ms Vernon and then advised Ms Libbis that she could apply for the job. She also advised Ms Libbis that she should lodge her application quickly as an exception was being made for her to lodge her application after the expiry period, due to her having been on annual leave.

[80] Ms Boyd gave extensive written evidence of an interview with Ms Libbis conducted by herself and Ms Vernon on 5 December 2014. One other staff member, Ms Rachel Collett was also interviewed for the role that day. Ms Boyd had opened the interview by outlining the duties of the role and advising that the role would involve 22 hours, over three days a week. She recalled Ms Vernon asking Ms Libbis about where she would see herself in five years. Ms Libbis replied in words to the effect of:

‘Stepping down as a supervisor, working less hours. I have been looking to step down as a supervisor as the position has become more physical with not having a cellarman and I am wanting to do less hours. It is earlier than I planned, but if required to do so for this position I will. I hadn’t planned on stepping down until July.’

When Ms Boyd and Ms Vernon sought to clarify what sort of arrangement she was seeking, Ms Libbis responded in words similar to the following:

‘I am wanting to step down in the next six months, I am happy to continue working full time to help the Club out. Ideally I would like to step down as supervisor in July, but if required to earlier I am prepared to.’

[81] As both Ms Boyd and Ms Vernon were aware that this would create gaps in the rotating roster under the current structure, Ms Vernon put a question to Ms Libbis as follows:

‘If you were to remain full time until stepping down as a supervisor and going part-time would you prefer to continue on a rotating roster or a straight 5 days a week?’

Ms Libbis replied:

‘I’m happy to stay on a rotating roster working in the office and bar as required. It gives the Club an opportunity to train a new supervisor.’

Ms Libbis gave her opinion of individual bar staff employees as candidates for a Bar Supervisor role.

[82] Ms Boyd said that after the interview, she and Ms Vernon compared their notes and agreed that Ms Libbis was the stronger candidate for the office role. They also agreed that Ms Libbis could continue to work full time in both the office role and the bar for the time being. They had a brief discussion about a replacement for Ms Libbis as Bar Supervisor, but did not believe that any staff were sufficiently qualified at that point. Ms Vernon said she would contact Ms Libbis that afternoon to advise her she had been successful. Shortly after this time, Ms Boyd had a conversation with Ms Collett, the unsuccessful interviewee. Ms Collett suggested that maybe she could fill the vacant Supervisor role. Ms Boyd told her that no firm decision had been made as to Ms Libbis’ replacement, as she would continue doing Supervisor shifts at this stage.

[83] At some point in late January 2015, Ms Boyd liaised with the two other Supervisors, Mr Whitby and Mr Potter, as to the arrangement with Ms Libbis and its effect on the rotating Supervisors’ roster. On 2 February 2015, Ms Libbis commenced working in the office. She remained as a full time employee, working in the office eight hours on Monday and Tuesday and then six hours on Wednesday. She also worked two eight hour shifts in the bar as Supervisor, bringing her total hours to 38 hours per week. Shortly after this time, she and Vernon had an informal meeting with Ms Libbis, in which she advised that she was happy to ‘step down’ from full time work in the next six months. Ms Vernon asked her to put this in writing, so her agreement to step down could be confirmed.

[84] It was Ms Boyd’s evidence that on 9 February 2015, Mr Pritchard held a meeting with the Club’s members to advise that the Club was reviewing its structure and that staff had been asked to complete job descriptions to assist with the process. Ms Vernon had earlier handed out these documents to staff in late 2014.

[85] Ms Boyd recalled that at some time in March 2015, Ms Libbis told her that Mr McMullen had asked her about the office position. She had replied that she did not have anything in writing. Ms Boyd spoke to Ms Vernon about this later in the day. Ms Vernon replied that she had told Ms Libbis, a number of times, to put something in writing about the arrangement to step down to part time work.

[86] On 6 May 2015, Ms Boyd was witness to an informal meeting between Ms Vernon and Ms Libbis at which Ms Libbis’s ‘failure’ to put anything in writing was discussed. Ms Vernon provided Ms Libbis with a document that confirmed the agreement that she would step down as Supervisor and continue with the part time office role. Ms Libbis said that she needed to take the document home and discuss it with her partner. She had also asked about her long service leave and was advised by Ms Vernon that if she wished to have it paid out as a full time employee, this could be ‘looked at’. Ms Boyd did not recall Ms Libbis saying to her and Ms Stokan that she would never sign the document, because its contents were untrue.

[87] On 7 May 2015, Ms Boyd was present at a staff meeting to discuss the changes at the Club. Mr Pritchard had spoken about cutting back hours and diversifying revenue from poker machines. One employee, Mr Borycz had raised concerns about customer service and Mr Pritchard had responded by stating that staff would have to work harder. Ms Boyd recalled ‘general rumbles’ from staff about roster reductions. She did not recall Ms Libbis raising her hand to advise that she would be happy to accept a redundancy.

[88] A few days after 7 May 2015, Ms Boyd asked Ms Libbis if she had looked at the document provided by Ms Vernon. Ms Libbis said she would not sign it as it indicated she would step down in early June 2015. She also believed that it was wrong to describe her as a casual, rather than part time employee. Ms Boyd said that this latter issue did not reflect her understanding and that Ms Libbis should speak to Ms Vernon to clarify the position. She also asked Ms Libbis why stepping down in June 2015 was a problem. Ms Libbis replied that it would affect her tax. Ms Boyd again advised Ms Libbis to speak to Ms Vernon.

[89] Ms Boyd said that shortly after Mr Whitby and Mr Potter were advised of redundancies on 27 May 2015, Ms Libbis approached her and said she would be contacting the Union as she believed she was entitled to a redundancy payment. At a meeting attended by Ms Boyd, Mr Boag, Mr Pritchard and Ms Lynda Jolley, Director on 11 June 2015, Ms Boyd asked why Ms Libbis was not offered a redundancy. Mr Pritchard replied that she was not entitled to redundancy as she had already stepped down. He said that the Club could not afford two redundancies. Moreover, Ms Libbis was meant to have signed a document confirming the changes to her employment. Ms Boyd replied that she was aware of, but had not seen, this document.

[90] Ms Boyd stated that on 12 June 2015, she took minutes of a meeting with Ms Libbis, Mr Boag and Mr Pritchard. These minutes record that Ms Libbis was happy to attend, but not prepared to fully discuss the issue without a Union representative present. These minutes attribute the following statement to Mr Pritchard and Mr Boag:

‘There is no redundancy for you and if this is the case, Chris you will remain as a fulltime supervisor out on the floor, meaning you will not be in the office. This will have an effect on other staff as they will lose hours.’

Ms Libbis repeated a number of times that nothing had been put in writing about the agreement. She expressed a concern that her office hours might be cut and her position was insecure.

[91] Ms Boyd deposed that when Ms Vernon returned from annual leave on 16 June 2015, she had a conversation in which she expressed her disappointment that Ms Libbis had not abided by, or confirmed their verbal agreement in writing. Ms Libbis declined to discuss the issue further without a Union representative present. After a meeting between Ms Vernon and Ms Lilly Proctor of the Union on 30 June 2015, Ms Vernon had told her that Ms Proctor had admitted to her that Ms Libbis had changed her mind and now wanted redundancy.

[92] On or around 30 June 2015, Ms Boyd directed Ms Stokan to change Ms Libbis’s employment status to part time. Ms Stokan expressed her confusion at the arrangement. It was her opinion that the change had not been handled well. Ms Boyd replied that Ms Libbis had agreed to step down to part time work prior to the redundancy process and had then refused to sign a document confirming her earlier arrangement.

[93] Ms Boyd said that in early July 2015, she was asked to prepare a job description for Ms Libbis’s part time office role. After this was approved by Ms Vernon, a copy was provided to Ms Libbis. After this was provided to Ms Libbis, Ms Boyd became aware of an error in this document in that it described Ms Libbis’s position status as full time.

[94] In cross examination, Ms Boyd was shown a copy of a document she had prepared with a list of questions for Ms Libbis’s interview. Ms Vernon had made notations on this document throughout the interview. She accepted that none of the questions discussed reclassification, a specific roster or commencement date. It was not provided to Ms Libbis after the interview. Neverthelss, she stressed that she had witnessed the notes being prepared throughout the interview. She could not recall the word ‘fixed term contract’ being used.

[95] Ms Boyd clarified that between 5 December 2014 until early February 2015, Ms Libbis continued her full time Bar Supervisor role. From February 2015, she worked Supervisor shifts and shifts in the office and was employed on a full time basis.

[96] Ms Boyd accepted that Ms Vernon was inconsistent in confirming meetings and conversations in writing. Mr Whitby’s redundancy and reengagement were confirmed in a letter prepared by Ms Vernon, but she had never seen it. She could not say when the ‘confirmation document’ was provided to Ms Libbis, because she had not seen it and was not involved in its preparation.

[97] Ms Boyd agreed that Ms Libbis had raised a number of issues with her in conversations after 7 May 2015. The only issue that Ms Boyd had passed on directly to Ms Vernon was the issue of whether Ms Libbis was part time or casual. Ms Vernon had assured her that the documentation referred to Ms Libbis as part time. She believed she communicated Ms Libbis’s concerns as to the start date of her part time employment.

[98] Ms Boyd could not say whether excluding Ms Libbis from the operation of cl 50 of the Agreement was valid or whether the Club had received advice on this point. Nevertheless, she believed that the payment of a further redundancy would place a burden on the Club, as it was experiencing financial difficulties.

[99] Ms Boyd was shown a copy of the minutes of the meeting on 12 June 2015. She had given a copy of this document to Ms Vernon and had been instructed to ensure that Mr Pritchard and Mr Boag looked over the notes. However, she did not do so. Nevertheless, she was satisfied that the minutes were a true and accurate record of the meeting. She could not recall who had told Ms Libbis that she would not get redundancy and that she would remain as a full time Supervisor if it were otherwise. However, she believed both Mr Boag and Mr Pritchard were agreed on that point.

[100] Ms Boyd was shown a copy of Ms Libbis’s request to be considered for redundancy in accordance with cl 50 of the Agreement. She agreed with a proposition that it was Ms Libbis’s right to ask that a term of the Agreement be applied to her.

[101] In re-examination, Ms Boyd clarified that during the meeting on 5 December 2014, Ms Libbis had been very clear in requesting that she step down to part time work from July 2015. Ms Boyd did not understand what was meant by the term ‘fixed term contract’.

[102] Ms Boyd agreed that during the 12 June 2015 meeting, Mr Boag and Mr Pritchard had told Ms Libbis that she would remain as a full time Supervisor if she was found to be entitled to redundancy. However, by this point the Directors were frustrated, as the matter had not been correctly documented.

Mr Robert Pritchard

[103] Mr Pritchard has been a Director of the Club since November 2014 and also sits on the Member Services and Marketing Committees. He is also a member of the Restructure Review Sub-Committee and the Strategic Planning Committee/Group. At a Board meeting on 10 November 2014, he was nominated to review the Club’s governance arrangements and was involved in proposing options to change the Club’s business model. He coordinated this through Mr Boag.

[104] Mr Pritchard said that in November 2014 Ms Vernon and Mr Boag had advised him that Ms Libbis was to transfer from her Supervisor role to a part time office role. He was told that this was at Ms Libbis’s request, as she had difficulty with the physical aspects of the Supervisor’s role and wanted to reduce her hours. He understood that the transfer of her role was to be finalised at the end of June 2015, after a period working part time in both the Supervisor and office roles.

[105] Mr Pritchard said that he had concerns that Ms Libbis’s competency for the office role. He believed, more generally, that the Board did not engage with the Club’s employees to fully understand what their roles entailed. He believed this approach needed to change to ensure the Club’s future.

[106] Mr Pritchard organised and chaired a Board Planning day held on 8 January 2015 attended by all Board members, which was to formalise and draw up a framework to implement a business proposal and model for the Club. The restructure was not discussed in detail on this day, because the Board had decided that a job description exercise should be undertaken first. He also developed the presentation for a Members’ forum to advise and consult with the Club’s members of the changes that were occurring and the reasons for them (9 February 2015).

[107] Mr Pritchard worked with Ms Vernon to obtain information from staff as to their duties and functions. This was to be used as a basis for any revision to the Club’s processes and structure. It was to be completed by the end of February 2015. However, the material received from staff was insufficient for the Club’s purposes and a Restructure Review Sub Committee became responsible for this exercise. Ms Vernon had told the staff of the reasons for this exercise on 12 December 2014. Managers were simultaneously producing standard operating procedures for their sections and Mr Boag was also reviewing relevant technological changes at this time.

[108] Mr Pritchard had attended consultative staff meetings on 2, 6 and 9 February, 7 May and 15 June 2015. These were held in accordance with an undertaking given to the Club’s members, that no changes would be made without the staff’s involvement. He recalled that Ms Libbis had attended these meetings and was generally supportive of the approach. The new structure, involving an Operations Supervisor with a ‘bare bones’ roster, was provided at the meeting on 7 May 2015. It was proposed to be trialled for three months. While staff had raised some concerns, no one had suggested it could not be done. At one of the meetings with Supervisors, there was an admission by all three Supervisors that the existing structure did not work well, although he could not recall if everyone agreed with that view. He said he was ‘flabbergasted’ to hear this.

[109] Mr Pritchard recalled that when the new structure was presented, Ms Libbis had said words to the effect of ‘This will not affect me as I will be working in the part time position in the office at end [sic] June 2015.’ The employees were told that if redundancies were necessary, all legal requirements would be complied with. There was no request for employees to volunteer for redundancies at this time. He could not recall Ms Libbis expressing her interest in a redundancy package. Mr Potter and Mr Whitby were told to advise Mr Boag if they wanted to apply for the role of Operations Supervisor and Ms Libbis was present when this was said. The question of whether the General Manager role would continue was also being considered at this time.

[110] Mr Pritchard acknowledged that he had some concerns about the lack of a written agreement with Ms Libbis. However, he considered that she was not affected by the process affecting Mr Whitby and Mr Potter because she had already taken on the other work. While Ms Libbis had been concerned about any detriment to her entitlements by the move to part time employment, the Club had guaranteed that ‘there would be a line drawn under previous entitlements and new entitlements’. Nothing in the proposed restructure impacted on Ms Libbis’s role in the office.

[111] Mr Pritchard said that after Mr Whitby was notified that he had been unsuccessful in applying for the Operations Supervisor role, he was offered full or partial redundancy, depending on whether he wanted to continue as an employee. At around this time, Ms Vernon had told him that Ms Libbis was seeking advice as to her own redundancy. In a subsequent meeting with the Restructure Review Subcommittee, Ms Libbis advised she would be seeking assistance from the Union in relation to her claims of redundancy. Mr Pritchard described this as ‘an opportunistic grab for cash’. He emphasised that the move to the part time office role had been at her request.

[112] In cross examination, Mr Pritchard confirmed that he was not present at any meeting which discussed Ms Libbis’s classification with her. He had been verbally advised by Mr Boag and Ms Vernon that Ms Libbis was moving into the part time office role. He had not been aware that the Payroll Office had formally changed Ms Libbis’s status from full time to part time on 1 July 2015. He understood that between December 2014 and 1 July 2015, Ms Libbis was effectively working two part time jobs, although he did not take issue with a proposition that she was a full time employee, working a composite position. He had formed the view that, as a matter of logic, Ms Libbis would be being paid less when she was moved from a full time Bar Supervisor role to a part time clerical role.

[113] Mr Pritchard believed that the statements made by Ms Libbis during the meeting of 7 May 2015 made it clear that she was due to finish in her Supervisor role at the end of June 2015. The Club had proceeded on this general understanding that Ms Libbis was not eligible for redundancy. Mr Pritchard accepted that Ms Vernon had not specifically advised him that Ms Libbis was not covered by the redundancy clause in the enterprise agreement. Rather, he and others had considered that Ms Libbis would not be part of the Supervisor structure because she had already applied for the part time clerical role, because the physical aspects of the Supervisor role were becoming onerous.

[114] Mr Pritchard said that the failure to enter into a written agreement with Ms Libbis was reflective of a poor standard of governance at the Club. While the small town environment meant that people tended to rely on ‘word of mouth’, this was not how he preferred to do business. He agreed that Mr Whitby’s transition to a lower grade was documented.

[115] When Mr Pritchard was shown the minutes of the meeting of 12 June 2015 (see para [90]) and referred to the words attributed to him and Mr Boag, he did not believe that the words attributed to him were true and accurate. Nevertheless, he accepted that they had been prepared by the Club’s Office Manager. He could not recall having said to Ms Boyd that the Club could not afford two redundancy payments.

Mr David Boag

[116] Mr Boag has been on the Board of Directors of the Club since 2009 and is the Chairman of the Club Services Committee, which is responsible for the oversight of all services within the Club.

[117] In written evidence, Mr Boag explained that in January 2014 the Board of the Club had set up an Independent Advisory Committee (IAC), which was to consider options for a revised business model. He had been concerned that the Club would have operated at a loss in the previous five years, had it not been for a bequest of $120,000 and an insurance claim of $250,000. There was a projected loss of at least $150,000 for the next financial year. The IAC provided its report to the Board in April 2014 and suggested that trading hours and staffing arrangements be reviewed.

[118] The Board was advised by the Club’s auditor in September 2014 that its earnings were below what would be required to ensure the sustainability of the Club. A month earlier, Mr Boag suggested to the Board, that it would be more efficient to have one Operations Supervisor looking after bar and gaming operations to replace the three Bar Supervisors. This proposal was formally put to the Board in a meeting in October 2014. A final decision was postponed pending a review by a working party considering an overall restructure of the Club’s bar, gaming and administrative arrangements.

[119] Mr Boag recalled that Ms Vernon had told him, on or around 31 October 2014, that a memo would be sent to staff advising of a vacancy for a casual/part time office administration role, due to the pending resignation of the Club’s Payroll Officer, Ms Ballantyne. Ms Ballantyne’s intention to resign had been common knowledge for six months.

[120] Mr Boag said that at a further Board meeting on 24 November 2014, Mr Pritchard was granted the Board’s permission to review the Club’s employees and organisational structures. This involved identifying and collating the duties performed by employees. Ms Vernon and Mr Pritchard had provided staff with a questionnaire around mid-December 2014 which sought that they record their actual duties each shift. They were given until the end of February 2015 to complete it.

[121] Mr Boag was advised by Ms Vernon some time after 5 December 2014, that Ms Libbis had been successful in her application for the part time administration role and that her request to continue to work Supervisor shifts, until the end of June 2015, had also been granted. Ms Vernon officially advised the Board of this arrangement on 15 December 2014. Mr Boag annexed a redacted copy of the General Manager’s Report to this meeting, which set out the need for a part time office position to be filled (see para [52]).

[122] Mr Boag said that shortly after, he had mentioned to Ms Libbis that she would be working in the office. She had replied in words to the effect of:

‘Yes, it suits me to go permanent part-time as I wish to reduce my workload and the hours that I work, but would like to continue working full number of hours [sic] until the end of June.’

[123] Mr Boag said that a Planning Day was held on 8 January 2015 with the Board and Ms Vernon to discuss ideas for future changes to the Club. A number of working parties were established to review and examine specific issues, including the proposed restructure. As a result of Mr Boag’s review of the Club’s gaming operations, he provided a proposed roster to Mr Whitby, Mr Potter, Ms Libbis and one other person, which took into account technological changes in this area. Ms Libbis provided a handwritten response some time in February 2015, a copy of which was annexed to Mr Boag’s statement. Her response was taken into account.

[124] At a Board meeting on 27 April 2015, it was resolved that a new structure, based on technological and rostering changes would be implemented. He and Ms Vernon subsequently held a meeting with Mr Whitby, Mr Potter and Ms Libbis to inform them of the changes to the Supervisor roles from 1 July 2015. Mr Boag explained that Ms Libbis was involved because she was a senior staff member with an understanding of operations. He and Ms Vernon discussed the changes with the Supervisors, with particular reference to the Club’s financial position. When they addressed the issue of how the staffing changes would proceed, Ms Libbis had said, ‘This will not affect me because I’m going part-time in the office from the 30^th of June 2015.’ Mr Whitby and Mr Potter both confirmed that they wished to apply for the new Operations Supervisor role. They were the only applicants for the role when he, Mr Pritchard and Ms Vernon conducted interviews on 21 May 2015. Mr Potter was the successful applicant and when Mr Whitby was offered redundancy or a part time role with partial redundancy, he chose the latter.

[125] Mr Boag also gave evidence of the meeting held on 7 May 2015 with all staff to discuss the change to the Supervisor roles. Ms Vernon, Mr Pritchard, Mr Whitby, Mr Potter and Ms Libbis were present, together with other staff. The staff were told that Ms Libbis would be moving to the office on a permanent part time basis and would no longer work as a Supervisor from 30 June 2015. She did not object when this was said and she was heard to say, ‘This won’t affect me. I’ll be in the office’ when the restructure was discussed. Mr Boag specifically denied that Ms Libbis had said, ‘Oh well I’m quite happy to take a redundancy package’ or otherwise indicated that she would accept a redundancy, if one was offered. He could recall her saying that the cellar duties were becoming increasingly physically demanding. He denied that she had put a letter in his pigeon hole after this meeting (see para [33].

[126] Mr Boag described being ‘disappointed and confused’ when he learned that Ms Libbis had requested redundancy in a letter to Ms Vernon, dated 9 June 2015. He believed an agreement had been entered into in good faith and he could not see how Ms Libbis could have misinterpreted the arrangement to cease working the Supervisor shifts from the end of June 2015. She had said as much in his presence. At a meeting on 12 June 2015, he, Mr Pritchard, and Ms Boyd met with Ms Libbis and advised that, as she had taken up the part time office role, and was ceasing her Supervisor shifts at the end of June 2015, in accordance with her own request, no redundancy was available.

[127] In cross examination, Mr Boag agreed that it was intended that Ms Libbis retain her status as a full time Level 5 employee until June 2015. He accepted there was no reference to a ‘fixed term contract’ being executed between Ms Libbis and the Club in the General Manager’s report to the Board on 15 December 2014. He also accepted that there was no set date for the completion of Ms Libbis’ ‘winding down’ of her hours. Nor was there an indication of her hours of work or specific duties.

[128] Mr Boag accepted that when Ms Libbis had said she wanted to work a ‘full number of hours until the end of June’ he had understood this to mean 38 hours per week. He agreed that the minutes of the Board meeting on 27 April 2015 set out that a new staff structure was to be adopted by the Board from 1 July 2015. This would mean that Ms Libbis would be affected. Ms Libbis was a full time employee, but not a full time Supervisor at the time of the 7 May 2015 meetings. He agreed she was given a new payroll number when she became a part time employee after 1 July 2015.

[129] When referred to the redundancy clause of the Club’s enterprise agreement (cl 50), Mr Boag acknowledged that it applied to Ms Libbis’s employment as of 7 May 2015. However, she was not considered for redundancy, because she had previously requested and was offered a part time role in the office. This included her being given hours in the bar until 30 June 2015. Until that time, she had worked a ‘composite job’ after Ms Ballantyne had left.

[130] While Mr Boag had not been involved in the 5 December 2014 meeting, he had heard Ms Libbis refer to part time employment in the meetings on 7 May 2015. Mr Boag conceded that his expectation was that this arrangement be reduced to writing. He had not seen a document setting this out. He had relied on his advice from meetings and the reports from Ms Vernon. It was her advice that the Club relied on in determining that Ms Libbis was not entitled to redundancy because of this arrangement.

[131] Mr Boag was shown the minutes of the meeting of 12 June 2015 which discussed Ms Libbis’s request to be considered for a redundancy payment (see para [90]). Mr Boag agreed that the statement attributed to himself and Mr Pritchard should be read as meaning that if it was determined that redundancy was payable, her office work would be revoked and she would remain as a full time employee. This was one of the options discussed. He could not recall Mr Pritchard saying that the Club could not afford two redundancy payments, although he may have done so. He accepted that the payment of redundancy to Ms Libbis would not have been a substantial burden to the Club.

[132] Mr Boag was aware of the document presented to Ms Libbis for her to acknowledge the part time arrangement (see para [15]). He believed he had seen it after it was given to Ms Libbis. He was surprised to hear from Ms Libbis at the meeting on 12 June 2015 that she had not received anything, in writing, in relation to the role in the office. He had been concerned that the arrangement had not been formalised.

44. Such agreement may be expressed or may be implied from conduct. If an employer gives lawful notice of intention to terminate a contract by demoting an employee to a lower paid position, and the employee, on expiry of the notice, continues to work in the lower paid position without protest, such agreement may be readily inferred. It will be a matter of fact in each case as to whether such agreement can be inferred. For example, in Marriott v Oxford and District Cooperative Society Ltd [1969] 3 All ER 1126 a question arose as to the plaintiff's entitlement to redundancy payments under the Redundancy Payments Act 1965 (UK). That provided that an employee should be taken to be dismissed “if, but only if … the contract under which he is employed by the employer is terminated by the employer, whether it is so terminated by notice or without notice … ”. Entitlement thus turned on termination of the contract, rather than termination of employment. The appellant was employed as a foreman. The employer considered that there was insufficient work for foremen, and decided to offer the appellant the position of supervisor at a reduced wage. He protested and tried to obtain work elsewhere. On 24 January 1968 the employer wrote to him advising him that from the end of that month his wages would be reduced. He protested again but did not leave at once. His wages were reduced, and after three or four weeks he left to take another job. The Court of Appeal held that he was entitled to redundancy payments. It held that there had been a repudiation by the employer of the contract of employment. Lord Denning MR said at 1128:

“If the appellant had accepted the repudiation and said ‘I will not agree to this reduction in my wages’, and left at the end of the week, the contract would clearly have been terminated by the respondents, and he would be entitled to redundancy payment. There can be no doubt about it. Does he lose his redundancy payment simply because he stayed on for three or four weeks whilst he got another job? I think not. He never agreed to the dictated terms. He protested against them. He submitted to them because he did not want to be out of employment. By insisting on new terms to which he never agreed, the respondent did, I think, terminate the old contract of employment.”

45. That conclusion was dictated by the Court interpreting the letter given to the appellant not as an offer to the employee which he accepted but a dictation to him of the terms on which he was to work. There would appear to be no doubt that the situation could have been different if the letter had been cast in different terms or if there had been no protest by the employee.

46. Similarly, in O'Connor v The Argus and Australasian Ltd [1957] VR 374 a purported reclassification of a journalist to a lower grade without his consent was held to constitute a termination of the existing contract of employment, notwithstanding that the journalist agreed to continue working for the same employer in a different classification but under protest. There had been no agreement to terminate or vary the contract. However, in the circumstances of that case it did not constitute a breach of the award because there had been no termination of “employment” as that word was used in the relevant award.

47. Where an agreement to terminate the contract and to substitute a fresh one is inferred, the employee has no remedy under s 105. This is not because there has been no termination of employment but because there has been no termination by the employer. The action may have been initiated by the employer, but it has resulted in an agreement to terminate [my emphasis].’

[206] A Full Bench of the Australian Industrial Relations Commission (AIRC) in Re Charlton (2006) 154 IR 239, adopting the analysis in Advertiser Newspapers above, said at paras 33-34:

‘33. The question of when a demotion constitutes a termination of employment within general law principles relating to termination of contracts of employment, unconstrained by the Convention, was given careful consideration by the Full Court of the Supreme Court of South Australia in Advertiser Newspapers Pty Ltd v Industrial Relations Commission (SA). We respectfully adopt that analysis. Although the decision related to a different statutory context, that context required a consideration of general law principles that are equally applicable in the present case.

34. Unless the contract of employment or an applicable award or certified/workplace agreement authorises an employer to demote an employee, a demotion, not agreed to by the employee, that involves a significant reduction in remuneration will amount to a repudiation of the contract of employment. If that repudiation is accepted, either expressly or by conduct, then the contract of employment is terminated. If, in such circumstances, the demoted employee then remains in employment with the employer, this occurs pursuant to a new contract of employment in respect of the demoted position. It may be noted that where the employment continues with the employee allegedly acquiescing in a reduction in salary or other terms of employment, difficult questions may arise as to whether the continued employment involves the continuation of the original contract of employment (but with the employer breaching that contract by paying the reduced salary), a consensual variation of the terms of the original contract or the termination of the original contract and a substitution of a new contract of employment [my emphasis, endnotes omitted].’

[207] During the course of argument, Mr Langton put an alternative submission that Ms Libbis was not dismissed because when she commenced work in the new ‘hybrid’ role in February 2015, she commenced a fixed term contract which had an expiry date of when she reverted to part time work in July 2015. I am assuming Mr Langton is relying on the exclusion from the unfair dismissal jurisdiction of persons who are employed under a ‘contract of employment for a specified period of time’ in s 386(2)(a) of the Act; specified period of time, being synonymous with a ‘fixed term contract’. It is axiomatic that a fixed term contract must have a fixed start and end date. In Andersen v Umbakumba Community Council [1995] IRCA 165, von Doussa J said:

‘A "specified period of time" is a period of time that has certainty about it. A contract of employment for a specified period of time would be one where the time of commencement and the time of completion are unambiguously identified by a term of the contract, either by the contract stating definite dates, or by stating the time or criterion by which one or other end of the period of time is fixed, and by stating the duration of the contract of employment. As the period of time is defined in this way, it is apt to refer to a contract of employment for a specified period of time as a contract of employment for a fixed term, although this is not the description used in the Regulation.’

[208] It is obvious that Ms Libbis was not told that she had entered upon a fixed term contract. Putting this to one side, it must be said that there was really no fixed end date; largely because Ms Libbis had requested changes to the end date of the ‘hybrid’ role and the commencement date of part time employment. It seems to me that the best that can be said is that the term of the full time ‘hybrid’ office/Supervisor role was due to end some time in June 2015. In my view, these circumstances are not sufficient to establish a fixed term contract for the purposes of s 386(2)(a) of the Act. In any event, this matter can be readily determined on the more obvious basis that there was an agreement between Ms Libbis and the Club that had been mutually agreed and constituted ongoing employment by the Club.

[209] For reasons I will develop shortly, I am satisfied that Ms Libbis not only accepted and continued to work in the ‘hybrid’ position, without protest, from at least February to May 2015, but also that it was her idea in the first place. Ms Libbis had also agreed to move to part time work in the office, with occasional Supervisor shifts and has continued to work according to this agreement from 1 July 2015 to at least the end of 2015 (as far as I am aware). Moreover, agreement was not even inferred, it was mutually acknowledged and accepted. In my view, the circumstances in this case are entirely analogous to what was referred to in paras [43] and [44] of Adelaide Newspapers as not constituting a dismissal. In addition, as was said by the High Court in Toll (FGCT) Pty LTd v Alphapharm Pty Ltd (2004) 219 CLR 165; [2004] HCA 52 at para 40:

‘It is not the subjective beliefs or understandings of the parties about their rights and liabilities that govern their contractual relations. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe.’

[210] In my opinion, determining the outcome of this case is relatively straightforward and hinges on an assessment of the credibility of the witnesses, particularly Ms Libbis. Regrettably, Ms Libbis’s claims that she had never agreed to relinquish her full time Supervisor duties was little more than an expression of her disillusionment, after being refused redundancy payments of 25 weeks’ pay. It was unsurprising that the Club rejected her formal request to be made redundant. This is so because her position was not redundant. The Club had merely complied with an agreement with Ms Libbis for ongoing part time work which she had actually initiated herself.

[211] Ms Libbis’ sense of entitlement and Mr Acev’s valiant attempts to characterise the agreement as something it was not, coloured Ms Libbis’ evidence and, in the end, seriously undermined her credibility. In light of the formidable body of evidence relied on by the Club, I have formed the view that Ms Libbis clearly wanted to wind down her full time Supervisor duties after July 2015 (for tax purposes) and reached a verbal agreement on 5 December 2014 to work part time. She had an interview for the part time office position with the Club, which morphed into a temporary ‘hyrbrid’ full time clerical/supervisor role. This was accepted by the Club. However, there was never any doubt that the temporary role would end some time in late June or early July 2015. In my view, this would be the undoubted conclusion of any reasonable person assessing all of the circumstances.

[212] However, when the Club announced restructuring and possible redundancies in April 2015 and after her supervisory colleague, Mr Whitby was made redundant in late May 2015, Ms Libbis saw an opportunity to achieve a significant redundancy payout. To achieve this, she had to unravel the agreement which she had with the Club for ongoing work beyond July 2015. Her evidence was little more than a poor attempt to rewrite history in order to renege on an agreement which she had actually initiated.

[213] Ms Libbis’ real motivations were plainly obvious, when, during a meeting between the Club and Ms Libbis’ Union Official, Ms Lilly Proctor on 30 June 2015, Ms Proctor announced to Ms Vernon, more than once, that ‘she [Ms Libbis] wants to change her mind.’ Perhaps unsurprisingly, Mr Acev did not call Ms Proctor to give evidence (although, nor did Mr Langton summons her to give evidence in the proceeding). In my view, an adverse inference can be drawn by the Union’s failure to call Ms Proctor, as I am satisfied that her evidence would not have supported the Union’s case: Jones v Dunkel (1959) 101 CLR 298. It is instructive that Ms Libbis did not even mention this meeting in her statement. In any event, for reasons I shall discuss shortly, I found Ms Vernon to be a truthful witness. I accept her evidence as to what Ms Proctor said to her on 30 June 2015.

[214] There were many examples of Ms Libbis being unable to recall meetings, discussions and comments made to others, which supported the Club’s position of the agreement she had about the new part time position. Her recollection of the interview meeting with Ms Vernon and Ms Boyd on 5 December 2014 was selective, vague and evasive. The tenor of her evidence about the interview, was as if the interview had never taken place. The interview was for the very purpose of discussing the arrangements which were to apply in June 2015 (which became July 2015). It beggars belief that her memory of such an important meeting was so vague.

[215] In addition, Ms Libbis omitted relevant evidence from her statement which was unhelpful to her case. In oral evidence, she acknowledged that discussion had taken place that the restructure would not affect her. She provided no detail of the telephone call from Ms Vernon on 5 December 2014 offering her the position (see para [10]). Ms Libbis gave contradictory answers. When asked in cross examination whether Ms Vernon had requested her to acknowledge their agreement in writing, Ms Libbis contradicted herself within two questions. There were numerous examples of Ms Libbis acknowledging to others that she had an agreement to move to part time work and the reasons why she wished to do so. This included the evidence of Ms Vernon, Ms Boyd, Mr Boag and Mr Potter. Mr Langton identified at least 27 occasions in which Ms Libbis acknowledged to others that she had an agreement with the Club that she would be working part time after June 2015. There is no reason to doubt the overwhelming evidence in this regard. It is a preponderance of evidence which the Union simply could not overcome. To suggest that Ms Libbis had innocently omitted crucial conversations and meetings from her statement which were unhelpful to her case, is plain nonsense. Mr Acev accepted that the Union had assisted in preparing her evidence. Unfortunately, whoever assisted her, did her no favours, as her own oral evidence ultimately doomed her case.

[216] It would be a rather lengthy exercise to set out each of the occasions Ms Libbis contradicted her evidence, omitted relevant conversations or could not recall crucial conversations. However, the following examples serve to make the point.

Ms Libbis claimed she had not known of, and had not been aware of the internal memo in November 2014, advertising for the office position, was a part time role. This was despite the fact she had known the two office employees were casual employees. Moreover, she agreed she had been told about the position by three other employees: Ms Collett, Ms Pymble and Ms Boyd. In light of other corroborating evidence, it is utterly implausible that Ms Libbis did not know that the office position was part time.

To put the above understanding beyond any doubt, Ms Libbis commenced work in the new position in February 2015, without any objection, and worked in the ‘hybrid’ position, without complaint, until May 2015.

Ms Libbis completely denied that there had been any discussion about her transferring from her Supervisor role. This denial is manifestly false.

Ms Libbis said she could not recall telling Ms Vernon in the meeting of 5 December 2014 that she would move to part time work in July 2015. Ms Vernon’s notes record to the contrary. Why would Ms Vernon write notes of crucial matters which Ms Libbis infers were never said? It does not make any logical sense.

At the 7 May 2015 meetings, Ms Libbis omitted acknowledging in her statement evidence that the restructuring would not affect her, as she would be working part time at the end of June 2015. When pressed, she was forced to admit that she ‘may have said something like that’.

In her written statement, Ms Libbis omitted all of the comments which others attributed to her, but which do not now fit her ‘made up’ narrative. She claimed to have said that she would be happy to take a redundancy package. No one in attendance recalls her making this comment and the Union brought no evidence from anyone to say that she did. I am satisfied that not only were all of the other employees aware Ms Libbis would be unaffected by the restructure, but that she made it publicly and emphatically clear that she was unaffected because of the agreement. Given these circumstances, for Mr Acev to claim she had some proprietary right to be considered for redundancy is not only wrong at law, but mischievous and misleading. It is no wonder that Mr Boag and Mr Pritchard expressed a sense of frustration in the meeting of 12 June 2015 that an agreement the Club believed it had, was being reneged on.

Ms Libbis claimed that she put a letter to Mr Boag in his pigeon hole responding to the Club’s restructuring proposals and complains she received no response. No letter was produced in evidence and seemingly no copy of it was kept. However, I am troubled that a clumsy attempt had been made in the applicant’s statement to redact reference to there being a copy of this document. It is apparent to me, consistent with the wording of other references to Annexures in Ms Libbis’ statement, that the redacted words read: ‘A copy of my document is attached and marked…’. What is one to make of this curious redaction? Upon reflection, was the document excised from her statement on advice, because it contained matters unhelpful to her case? This seems a logical explanation. Mr Boag denies ever receiving such a letter (see para [125]). I accept his evidence.

In her statement Ms Libbis omitted to mention that she had spoken to Mr Whitby about redundancy. This was another example of relevant evidence being omitted which was unhelpful to her case.

In her statement, Ms Libbis omitted any mention of what was said in Ms Vernon’s phone call on 5 December 2014, offering her the part time office job. This was the offer and acceptance of an agreement to ongoing employment, which was struck at her initiative. It was to represent a significant change in her working arrangements. She defended this omission by saying that she did not think it was relevant. I hope that this was not on advice, because the details of this conversation were very relevant. It was the foundation of the Club’s refusal to accept her request for redundancy.

It is also curious that all staff were advised of possible redundancies on 29 April 2015. However, Ms Libbis did not request redundancy until 9 June 2015. Was this a belated reaction to the knowledge that Mr Whitby was offered redundancy and she was aggrieved that she had not?

The Club’s evidence

[217] In my assessment, all of the Club’s witnesses gave honest, straightforward and, most importantly, consistent evidence. In particular, I found Mr Pritchard to be an impressive and credible witness. His answers to questions were clear, succinct, directly on point and delivered with confidence. His evidence was consistent with other of the Club’s witnesses. I have no reason to doubt the truthfulness of his evidence. Accordingly, where his and other of the Club’s witnesses differs or conflicts with that of Ms Libbis as to their recollections of incidents and conversations, it is their evidence I prefer; not necessarily because of the preponderance of plausible, consistent evidence, but because it contrasted so sharply with Ms Libbis’ implausible and evasive evidence.

[218] Ms Vernon was also a strong and confident witness. She was involved in crucial meetings with Ms Libbis and was the Club’s central witness. It might be observed that Ms Vernon had no ‘axe to grind’ and no career motivation to strongly support the Club’s case, because her own job was under scrutiny at the time and, in fact, she no longer worked for the Club. Her evidence was straightforward, unembellished and unequivocal. She was very clear that there was a verbal agreement between the Club and Ms Libbis that she would commence work in February 2015 in a full time ‘hybrid’ office/Supervisor role, which would revert to part time work in June/July 2015.

[219] Much was made by the Union of the Club’s lack of attention to detail, the scant documentation of its arrangements with Ms Libbis and the ‘shifting’ end date of her full time duties. Dealing with the last point first, the end date changed twice at Ms Libbis’ request, not because the Club was tardy or derelict. The date changed because Ms Libbis wanted to work close shifts associated with a long weekend Jazz Festival and then because an early June date would have had tax implications for her. It is disingenuous for the Union to criticise the Club in these circumstances.

[220] Of course, it would have been preferable if the 5 December 2014 agreement had been committed to writing (as Mr Pritchard well recognised). Putting aside that Ms Libbis baulked at signing anything when Ms Vernon kept asking her to, and ultimately point blank refused to do so in May 2015, when the redundancy prospect was being floated, it does not follow that the non-existence of a signed agreement means that no such agreement existed. The learned authors in Carol Sappideen et al, Macken’s Law of Employment (Thomson Reuters (Professional) Australia, 7^th Ed, 2011) referred to the notions of ‘express’ or ‘implied’ offers of employment and said at para 4.110:

‘[4.110] Acceptance may be express or it may be implied. An offer may require acceptance to be written but, where an offer is silent as to the means of acceptance, an acceptance may be implied from subsequent conduct. By starting work in response to an offer of employment a person will be held to have impliedly accepted the offer. There may be cases where there is no formal offer or acceptance but the court is prepared to find that a contract of employment exists based on the parties’ conduct which indicates mutual assent. The question is whether a reasonable person in the position of the parties would have concluded that there is an agreement taking into account the conduct of the parties viewed in the context of the surrounding circumstances [footnotes omitted].’

[221] Further at para 4.80, in a passage concerning ‘informal offers’, it is said:

‘4.80 Often contract of employment are entered into with the minimum of formality. A series of telephone calls may give rist to an employment contract. it may be partly oral and partly written. A written contract does not necessarily preclude earlier verbally agreed terms. Discussions will give rise to a legal offer if the word and conduct “would have led a reasonable person in the position of the other party” to believe that an offer had been made [footnotes omitted].’

See also: Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 and Yousif v Commonwealth Bank of Australia (2010) 193 IR 212.

[222] In my view, there was a binding agreement between Ms Libbis and the Club. In fact, she worked according to this agreement from February 2015, without any complaint, until early May 2015. Given that this is a relatively small Club in a tight-knit coastal community, with long serving employees who all know and are friendly with each other, unwritten verbal employment arrangements are the norm, rather than the exception. To her credit, Ms Vernon accepted that she was at fault in not preparing the paperwork herself until 6 May 2015 and insisting Ms Libbis formalise the 5 December 2014 verbal agreement. Given that Ms Vernon was also under significant pressure from the Board concerning the restructure, this was a perfectly understandable omission. What I found telling were her words, ‘You would think someone of 25 years’ service could be trusted.’ I endorse this sentiment.

CONCLUSION

[223] Reluctantly, I feel bound to say that this case had little merit. This is not a comment I would make lightly. However, the Union was ill-advised to have run this case, at least from the point of the filing of the Club’s evidence (but probably much earlier). Its outcome will embarrass and cause distress for Ms Libbis in circumstances where, as I understand it, she still works for the Club, having done so with an unblemished record for over a quarter of a century.

[224] Regrettably, by pursuing this case against obvious and overwhelming odds against success, the Commission has been left with little alternative, but to be brutally frank. I am saddened to make the adverse comments I have about Ms Libbis’ evidence and I have attempted to ‘soften’ the commentary. In my view, Ms Libbis was ill-advised to have pursued this case. I hope that this unhappy experience will not reflect on Ms Libbis at work, or in the community, as I do not consider this case is a reflection of her general character or honesty. The reality was that she should have been more wisely advised.

[225] For all the aforementioned reasons, I dismiss this application on the jurisdictional ground that there was no dismissal of Ms Libbis for the purposes of Chapter 3, Part 3-2 of the Act. Orders giving effect to my decision will be published contemporaneously with this Decision.

DEPUTY PRESIDENT

Appearances:

Mr C Acev of United Voice for Ms Libbis.

Mr C Langton with Ms L Pike of Clubs NSW for the respondent.

Hearing details:

2015:

Eden,

12, 13 November.

Sydney,

7 December.

Printed by authority of the Commonwealth Government Printer

Christine Libbis v Pambula Merimbula Golf Club Limited