Divilly-Lavelle v Siemens Mobility Pty Ltd - [2023] VSC 28

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

EMPLOYMENT AND INDUSTRIAL LIST

S ECI 2020 02985

JOAN DIVILLY-LAVELLE	Plaintiff
v
SIEMENS MOBILITY PTY LTD (ACN 625 304 556)	Defendant

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JUDGE:	Richards J
WHERE HELD:	Melbourne
DATE OF HEARING:	2–4, 7–8 November 2022
DATE OF JUDGMENT:	8 February 2023
CASE MAY BE CITED AS:	Divilly-Lavelle v Siemens Mobility Pty Ltd
MEDIUM NEUTRAL CITATION:	[2023] VSC 28

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EMPLOYMENT LAW – Plaintiff employee of defendant company – Plaintiff distressed by negative feedback received from manager during performance review – Plaintiff complained about manager’s conduct – Whether manager’s conduct and defendant’s response to complaint were repudiatory breaches of employment contract – Whether defendant’s Business Conduct Guidelines incorporated into employment contract – Whether manager’s conduct and defendant’s response were in breach of Guidelines – Whether defendant failed to take reasonable care for plaintiff’s safety – Whether plaintiff elected to affirm contract – Whether defendant entitled to terminate plaintiff’s employment – No breach of employment contract – Guidelines not incorporated into employment contract – Complete breakdown of employment relationship – Company entitled to terminate plaintiff’s employment – Proceeding dismissed – Goldman Sachs JBWere Services Pty Ltd v Nikolich [2007] FCAFC 120 – Riverwood International Australia Pty Ltd v McCormick (2000) 177 ALR 193.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M O’Connor	Cranston McEachern Lawyers
For the Defendant	Ms R Sweet SC	Baker McKenzie

TABLE OF CONTENTS

Introduction................................................................................................................................... 1
Terms of the contract of employment........................................................................................ 5
Business Conduct Guidelines 2019................................................................................... 9
Plaintiff’s submissions...................................................................................................... 14
Defendant’s submissions.................................................................................................. 15
Consideration..................................................................................................................... 17

What occurred at the 31 July meeting?.................................................................................... 22
Ms Divilly-Lavelle’s evidence.......................................................................................... 24
Mr Nandi’s evidence......................................................................................................... 30
Findings............................................................................................................................... 35
Boardman report................................................................................................................ 39

What complaints did the plaintiff make about the 31 July meeting?.................................. 44
Meeting with Ms Barnard on 1 August 2019................................................................. 45
Letter to Ms Ruzicka dated 18 August 2019.................................................................. 45
Meeting with Mr Connolly on 21 August 2019............................................................. 47
Letter to Mr Connolly and Mr Zhuang and meeting of 25 September 2019............. 47
Letter to Mr Connolly and Mr Zhuang and meeting of 11 October 2019................. 50
Conclusion in relation to complaints.............................................................................. 51

Did Mr Nandi’s conduct towards the plaintiff during the 31 July meeting breach the plaintiff’s contract of employment?.................................................................................................. 52
Did the defendant’s response to the 31 July meeting and the complaints breach the plaintiff’s contract of employment?.................................................................................................. 53
Return to work in August 2019....................................................................................... 54
Response to complaints.................................................................................................... 55

Was any breach of contract repudiatory and did the plaintiff accept the repudiation?.. 58
Was the termination on 27 March 2020 in breach of the contract of employment?.......... 63
Damages....................................................................................................................................... 65
Disposition................................................................................................................................... 66

HER HONOUR:

Introduction

Siemens Mobility is a global business operation that designs, supplies, installs and maintains rail and light rail infrastructure. It is part of the broader Siemens Group, comprising Siemens AG, a multinational company listed and headquartered in Germany, and numerous subsidiaries and related companies worldwide. These include the Australian company Siemens Ltd, which carried on the Siemens Mobility…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] VSC 28
Decision Date: 8 February 2023

CaseChat Overview and Summary

Divilly-Lavelle, an employee, brought a claim against Siemens Mobility Pty Ltd, her employer, arguing that her dismissal was unfair due to alleged breaches of her employment contract. The plaintiff contended that negative feedback received during a performance review and the subsequent conduct of her manager, along with the employer’s handling of her complaint, amounted to a repudiatory breach of her employment contract. She further argued that the employer's Business Conduct Guidelines were incorporated into her contract, and that both the manager's conduct and the employer's response to her complaint were in breach of those Guidelines. Additionally, she claimed that the employer failed to take reasonable care for her safety, and that she had not elected to affirm the contract. Siemens Mobility Pty Ltd denied all allegations and argued that the employment relationship had broken down completely, justifying her dismissal.

The court had to determine whether the manager’s conduct and the employer’s response to the complaint constituted a repudiatory breach of the employment contract, whether the Business Conduct Guidelines were incorporated into the contract, and if the employer failed to take reasonable care for the plaintiff’s safety. The court also needed to ascertain whether the plaintiff elected to affirm the contract, and if the employer was entitled to terminate her employment. The court analysed the terms of the employment contract, the content and incorporation of the Business Conduct Guidelines, and the relevant case law. The court concluded that while the employer’s conduct did not amount to a repudiatory breach, the complete breakdown of the employment relationship justified the termination of the plaintiff's employment.

The court found that the Business Conduct Guidelines were not incorporated into the employment contract, and the employer did not fail to take reasonable care for the plaintiff's safety. The court also determined that the plaintiff had not elected to affirm the contract. Given the complete breakdown of the employment relationship, the court found that the employer was entitled to terminate the plaintiff’s employment. The proceeding was dismissed, with the court relying on precedents such as Goldman Sachs JBWere Services Pty Ltd v Nikolich and Riverwood International Australia Pty Ltd v McCormick to support its decision.

Orders