Evans v Oxford Shop Pty Ltd
[2022] FedCFamC2G 438
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Evans v Oxford Shop Pty Ltd [2022] FedCFamC2G 438
File number(s): PEG 243 of 2020 Judgment of: JUDGE LUCEV Date of judgment: 3 June 2022 Catchwords: INDUSTRIAL LAW – Small claim – contract of employment – where location of employment “as directed” – where change of location directed by employer – whether direction to change location lawful and reasonable – whether direction to change location constituted termination of employment – whether repudiation of contract of employment – whether alleged breach of industrial award gives rise to contractual obligation – whether entitlement to payment in lieu of notice on termination and redundancy
CONTRACT – interpretation – contract of employment – direction to change location of employment – whether direction to change location lawful and reasonable – whether direction to change location constituted termination of employment – whether repudiation of contract of employment
EMPLOYMENT – contract – interpretation – direction to change location of employment – whether direction to change location lawful and reasonable
WORDS AND PHRASES – “as directed” – “direct”
Legislation: Fair Work Act 2009 (Cth) ss 117, 119, 548, 789GB, 789GC, 789GF, 789GK, 789GM
Workplace Relations Act 1996 (Cth) s 93A
Cases cited: Association of Professional Engineers, Scientists and Managers, Australia v NSW Electricity Networks Operations Pty Limited t/a Transgrid [2018] FWC 6335
Australian Broadcasting Commission v Australian Performing Rights Association [1973] HCA 36; (1973) 129 CLR 99; (1973) 47 ALJR 526
BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266; (1977) 52 ALJR 20; (1977) 45 LGRA 62; (1977) 16 ALR 363
Byrne & Frew v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410; (1995) 69 ALJR 797; (1995) 61 IR 32; (1995) 131 ALR 422; (1995) 38 AILR 3-194
Coastal District Timber Hewers' Union of Workers v Millar’s Karri & Jarrah Company (1902), Limited & Ors (1906) 5 WAAR 93
Connelly v Wells (1994) 55 IR 73; (1994) 10 NSWCCR 396
Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1; (2022) 96 ALJR 89; (2022) 312 IR 1
DTR Nominees Pty Ltd v Mona Homes Pty Ltd [1978] HCA 12; (1978) 138 CLR 423; (1978) 52 ALJR 360; (1978) 19 ALR 223
Ejueyitsi v Commissioner of Police (Western Australia) [2013] FMCA 120
Han Jian v NHP Electrical Product Pty Ltd [2004] AIRC 1227
Hide & Skin Trading Pty Ltd v Oceanic Meat Traders (1990) 20 NSWLR 310
Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd [2007] HCA 61; (2007) 233 CLR 115; (2007) 82 ALJR 345; (2007) 241 ALR 88; [2008] Aust Contract Reports 90-279
Masters Home Improvement Aust Pty Ltd v Aventus Cranbourne Thompsons Road Pty Ltd [2019] VSC 428; (2019) 59 VR 80
McShane v Image Bollards Pty Ltd [2011] FMCA 215; (2011) 206 IR 239
Morris v Baron & Co [1918] AC 1; [1917] WN 297
Narich Pty Ltd v Commissioner of Pay-Roll Tax [1983] 2 NSWLR 597; (1983) 58 ALJR 30; (1983) 15 ATR 153; (1983) 50 ALR 417; (1983) 84 ATC 4035
Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; (2004) 218 CLR 451; (2004) 78 ALJR 1045; (2004) 208 ALR 213
Progressive Mailing House Pty Ltd v Tabali Pty Ltd [1985] HCA 14; (1985) 157 CLR 17; (1985) 59 ALJR 373; (1985) 57 ALR 609
R v Darling Island Stevedoring and Lighterage Company; ex parte Halliday and Sullivan [1938] HCA 44; (1938) 60 CLR 601; (1938) 12 ALJ 172
Thompson v IGT Australia Pty Ltd [2008] FCA 994; (2008) 173 IR 395
Vasram v AMP Life Ltd [2000] FCA 1916; (2000) ANZ Ins Cases 90-107
Walker v State of Victoria [2012] FCAFC 38
Westpac Banking Corporation v Wittenberg and Others [2016] FCAFC 33; (2016) 242 FCR 505; (2016) 256 IR 181; (2016) 330 ALR 476
Williams v LG Staff Pty Ltd [2020] FCCA 1000
WorkPac Pty Ltd v Rossato [2021] HCA 23; (2021) 95 ALJR 681; (2021) 309 IR 89; (2021) 392 ALR 39
Zoological Board of Victoria v Australian Liquor, Hospitality & Miscellaneous Workers Union (1993) 49 IR 41; [1993] 3 CAR 299
Other material: C Sappideen, et al, Macken’s Law of Employment (Eighth Edition) (Sydney: Thomson Reuters, 2016)
International Labour Organisation’s Workers with Family Responsibilities Convention 1981
Macmillan Publishers Australia, 2022, Macquarie Dictionary, online at last accessed 30 May 2022
Oxford University Press, 2022, Oxford English Dictionary, online at last accessed 30 May 2022
Shop and Warehouse (Wholesale and Retail Establishments) State Award 1977Division: Division 2 General Federal Law Number of paragraphs: 84 Date of last submission/s: 7 July 2021 Date of hearing: 7 July 2021 Place: Perth The Applicant: Appeared in person Counsel for the Respondent: Mr T. McDonald Solicitor for the Respondent: Moray & Agnew ORDERS
PEG 243 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: TARA ANNE EVANS
Applicant
AND: OXFORD SHOP PTY LTD
Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
3 JUNE 2022
THE COURT ORDERS THAT:
1.In relation to the application of s 789GM of the Fair Work Act 2009 (Cth) to this matter the applicant and respondent:
(a)file further written submissions (limited to the application of s 789GM of the Fair Work Act 2009 (Cth) to this matter) by 10 June 2022;
(b)
give oral submissions in reply at a further hearing at 10.00 am AWST /
12 noon AEST on 14 June 2022;
(c)the respondent have leave to appear at the further hearing on 14 June 2022 by video-link.
2.Costs, if any, reserved.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LUCEV
INTRODUCTION
The application is a small claim under s 548 of the Fair Work Act 2009 (Cth) (“FW Act”). The applicant, Ms Tara Anne Evans (“Ms Evans”), seeks an order for pay in lieu of notice of termination and redundancy pay from the respondent, Oxford Shop Pty Ltd (“Oxford Shop”). Oxford Shop is a fashion retail outlet. The application is opposed by Oxford Shop.
THE CLAIM
The claim as filed asserts that Oxford Shop owes Ms Evans $4,390 by way of pay in lieu of notice of termination and $8,780 by way of redundancy pay, a total of $13,170, under National Employment Standards in ss 117 (requirement for notice of termination or payment in lieu) and 119 (redundancy pay) of the FW Act.
SMALL CLAIMS JURISDICTION
Section 548 of the FW Act provides for this Court to have jurisdiction in small claims matters (principally matters in which the monetary amount sought is under $20,000). This is such a matter, it being a claim for $13,170. Jurisdiction in small claims matters is however limited, not just by the monetary amount, but also by the types of matters which can be subject to the small claims jurisdiction. Section 548 (1), (1A (a)) and (2(a)) of the FW Act provide as follows:
548 Plaintiffs may choose small claims procedure
(1) Proceedings are to be dealt with as small claims proceedings under this section if:
(a) a person applies for an order (other than a pecuniary penalty order) under Division 2 from a magistrates court or the Federal Circuit Court; and
(b) the order relates to an amount referred to in subsection (1A); and
(c)the person indicates, in a manner prescribed by the regulations or by the rules of the court, that he or she wants the small claims procedure to apply to the proceedings.
(1A) The amounts are as follows:
(a) an amount that an employer was required to pay to, or on behalf of, an employee:
(i) under this Act or a fair work instrument; or
(ii) because of a safety net contractual entitlement; or
(iii) because of an entitlement of the employee arising under subsection 542(1);
…
Limits on award
(2) In small claims proceedings, the court may not award more than:
(a) $20,000; or
…
This claim is one made pursuant to s 548(1A)(a)(i) and (ii) of the FW Act.
LEAVE FOR COUNSEL TO APPEAR
At a directions hearing on 5 October 2020 the Court (differently constituted) granted leave pursuant to s 548(5) of the FW Act for the parties to be represented by a lawyer until further order of this Court.
There has been no further order of the Court, and the Court sees no reason to set aside the order for leave to appear by a lawyer. No submissions were made by either party in respect of this issue at hearing, but given the legal issues involved, the Court considers it appropriate that at least one of the parties be legally represented.
Ms Evans was self-represented, while Oxford Shop was represented by a lawyer.
SMALL CLAIMS EVIDENCE AND PROCEDURE
In relation to evidence and procedure in small claims matters, s 548(3) of the FW Act provides as follows:
(3) In small claims proceedings, the court is not bound by any rules of evidence and procedure and may act:
(a) in an informal manner; and
(b) without regard to legal forms and technicalities.
The capacity to act informally and without regard to legal technicalities is not the provision of a licence to disregard legal principles: Zoological Board of Victoria v Australian Liquor, Hospitality & Miscellaneous Workers Union (1993) 49 IR 41; [1993] 3 CAR 299 at [48] per Moore J; Ejueyitsi v Commissioner of Police (Western Australia) [2013] FMCA 120 ("Ejueyitsi") at [7] per Lucev FM, and it does not displace the requirement that the Court must exercise its powers judicially: Walker v State of Victoria [2012] FCAFC 38 at [81] per Gray J; Ejueyitsi at [7] per Lucev FM. In respect of a similar provision in early Western Australian industrial relations legislation the Western Australian Court of Arbitration observed as follows in Coastal District Timber Hewers' Union of Workers v Millar’s Karri & Jarrah Company (1902), Limited & Ors (1906) 5 WAAR 93 at 95 per Burnside J:
I very much doubt if the Legislature meant that we should accept the loosest form of evidence. I rather think it intended that we should abide by the rules of evidence as nearly as possible but not to the absolutely technical rules of evidence.
The Court has more recently observed that although the Court is not bound by the rules of evidence, and may act informally, and without regard to legal forms and technicalities in small claims proceedings, this does not relieve an applicant from the necessity to prove their claim, and the Court can only act on evidence having a rational probative force: McShane v Image Bollards Pty Ltd [2011] FMCA 215; (2011) 206 IR 239 at [7] per Lucev FM; Williams v LG Staff Pty Ltd [2020] FCCA 1000 at [11]-[13] per Judge O’Sullivan.
PRIMARY ISSUE
The primary issue for determination in these proceedings is whether Oxford Shop was entitled to transfer Ms Evans from one store to another store, and to treat her employment as ongoing, and whether if Ms Evans did not transfer to another store, Oxford Shop was entitled to treat a refusal to transfer as a repudiation of the contract of employment, or whether, therefore, Ms Evans was entitled to treat the employment as being at an end as a consequence of it being terminated by Oxford Shop on the transfer from one store to another store, and was therefore entitled to payment in lieu of notice of termination and redundancy pay under ss 117 and 119 respectively of the FW Act.
Sections 117 and 119 of the FW Act provide as follows:
117 Requirement for notice of termination or payment in lieu
Notice specifying day of termination
(1) An employer must not terminate an employee’s employment unless the employer has given the employee written notice of the day of the termination (which cannot be before the day the notice is given).
Note 1: Section 123 describes situations in which this section does not apply.
Note 2: Sections 28A and 29 of the Acts Interpretation Act 1901 provide how a notice may be given. In particular, the notice may be given to an employee by:
(a) delivering it personally; or
(b) leaving it at the employee’s last known address; or
(c) sending it by pre-paid post to the employee’s last known address.
Amount of notice or payment in lieu of notice
(2) The employer must not terminate the employee’s employment unless:
(a) the time between giving the notice and the day of the termination is at least the period (the minimum period of notice) worked out under subsection (3); or
(b) the employer has paid to the employee (or to another person on the employee’s behalf) payment in lieu of notice of at least the amount the employer would have been liable to pay to the employee (or to another person on the employee’s behalf) at the full rate of pay for the hours the employee would have worked had the employment continued until the end of the minimum period of notice.
(3) Work out the minimum period of notice as follows:
(a) first, work out the period using the following table:
Period Employee’s period of continuous service with the employer at the end of the day the notice is given Period 1 Not more than 1 year 1 week 2 More than 1 year but not more than 3 years 2 weeks 3 More than 3 years but not more than 5 years 3 weeks 4 More than 5 years 4 weeks (b) then increase the period by 1 week if the employee is over 45 years old and has completed at least 2 years of continuous service with the employer at the end of the day the notice is given.
…
119 Redundancy pay
Entitlement to redundancy pay
(1) An employee is entitled to be paid redundancy pay by the employer if the employee’s employment is terminated:
(a) at the employer’s initiative because the employer no longer requires the job done by the employee to be done by anyone, except where this is due to the ordinary and customary turnover of labour; or
(b) because of the insolvency or bankruptcy of the employer.
Note: Sections 121, 122 and 123 describe situations in which the employee does not have this entitlement.
Amount of redundancy pay
(2) The amount of the redundancy pay equals the total amount payable to the employee for the redundancy pay period worked out using the following table at the employee’s base rate of pay for his or her ordinary hours of work:
Redundancy Pay Period
Employee’s period of continuous service with the employer on termination
Redundancy Pay Period
1
At least 1 year but less than 2 years
4 weeks
2
At least 2 years but less than 3 years
6 weeks
3
At least 3 years but less than 4 years
7 weeks
4
At least 4 years but less than 5 years
8 weeks
5
At least 5 years but less than 6 years
10 weeks
6
At least 6 years but less than 7 years
11 weeks
7
At least 7 years but less than 8 years
13 weeks
8
At least 8 years but less than 9 years
14 weeks
9
At least 9 years but less than 10 years
16 weeks
10
At least 10 years
12 weeks
EVIDENCE
Persons giving evidence
Evidence was given in these proceedings by three people:
(a)Ms Evans on her own behalf as the applicant;
(b)Daniel Craig Maddox (“Mr Maddox”), who was subpoenaed to give evidence by Ms Evans; and
(c)James Benjamin Togno (“Mr Togno”) for Oxford Shop.
Affidavits read
At hearing the following affidavits were read:
(a)the affidavit of Tara Anne Evans sworn on 7 August 2020 (“Evans Affidavit”); and
(b)the affidavit of James Togno sworn on 21 August 2020 (“Togno Affidavit”), in which the words “As a result” at [10] were not read.
Contract of employment provisions
In Ms Evans’ Offer of Employment (“Employment Offer”), emailed to her by the Oxford Shop HR Manager on 13 March 2015, it was said that the two documents that form Ms Evans’ contract of employment (“Employment Contract”) are the “Conditions of Employment” and the “Position Description”: Evans Affidavit at [3]-[4], Annexure TAE 1, relevantly providing in the Employment Offer as follows:
It is my pleasure to welcome you to the Oxford team as a Store Manager, in our Joondalup store commencing on the 17th of March 2015.
Please read over the Conditions of Employment as well as the Position Description before signing them as these form your employment contract with Oxford.
In the Conditions of Employment: Evans Affidavit at [3]-[4], Annexures TAE 1 and 2, it specifies (at Annexure TAE 2) that Ms Evans:
(a)would be employed in the “position” of “Store Manager”;
(b)that her “Status” would be “Full-Time”;
(c)her “Primary Location” would be “As Directed”; and
(d)her “Start Date” would be “17th March 2015”.
The Position Description: Evans Affidavit at [5], Annexure TAE 3, re-iterates that Ms Evans’ “Job Title” is “Store Manager” and says that her “Location” is “As Directed”.
The “Termination of Employment” in the Conditions of Employment: Evans Affidavit at [3]-[4], Annexures TAE 1 and 2, is as follows:
(a)Your employment (outside of any probation period) may be terminated by either the Company or yourself by providing the period of notice required under prevailing legislation or, in the case of termination by us, payment for the equivalent of part or all of that notice period.
(b)If you or the Company give notice ending your employment in accordance with paragraph (a) above, the Company may direct you at any time during the notice period not to attend work, or not to perform all or part of your Duties.
(c)Paragraph (a) above does not affect the Company's right to terminate your employment without prior notice if in the opinion of the Company you behave in a way that is fundamentally inconsistent with your Duties and responsibilities as an employee, including but not limited to, misconduct in the course of performing your Duties, inaction in the course of performing your Duties, fraud, dishonesty, insubordination, breach of confidentiality, or any persistent breach of any of the Employment Conditions or the Policies.
(d)Your employment is at all times conditional upon you obtaining and retaining all necessary visas, work permits, licences, registrations, or memberships to enable you to lawfully reside and work in Australia and fulfil your duties. You must notify your Manager immediately if any of your circumstances change. If you cease to be lawfully entitled to work in Australia for any reason, your employment will terminate immediately, without notice or further compensation.
If your employment is terminated for one of these reasons, salary in lieu of notice would not be paid but any unpaid salary and leave entitlements will be paid at the time of termination.
Ms Evans’ evidence
Ms Evans’ evidence-in-chief (much of it uncontroversial) was as follows:
(a)Ms Evans commenced employment with Oxford Shop on 17 March 2015 as a Store Manager working full-time 38 hours per week at the Joondalup store: Evans Affidavit at [1]-[2];
(b)immediately prior to the opening of the DFO store near Perth Airport (“DFO Perth Airport Store”) on 3 October 2018, Ms Evans worked at the DFO Perth Airport Store for three days to assist with the opening: Evans Affidavit at [6];
(c)the Joondalup store closed permanently on 17 November 2019 and Ms Evans commenced work at the Wesley Quarter store on 20 November 2019 as a full-time Store Manager: Evans Affidavit at [7];
(d)on 25 March 2020 Ms Evans was asked not to go into work until further notice: Evans Affidavit at [8];
(e)on 15 April 2020 the Wesley Quarter store closed permanently: Evans Affidavit at [9];
(f)on or about 15 April 2020 Oxford Shop accessed the JobKeeper Scheme and continued to employ Ms Evans: Evans Affidavit at [9];
(g)on 8 July 2020 Ms Evans was asked by Oxford Shop Cluster Manager, Mr Maddox, to commence work at the DFO Perth Airport Store, but Ms Evans declined to do so on the basis that she relied on public transport to get to work and the journey would be four hours of travel each day, which she considered unreasonable: Evans Affidavit at [10]. The correspondence between Ms Evans and Mr Maddox (“8 July 2020 SMS Messages”) was as follows: Evans Affidavit at [11], Annexure TAE6:
(i)Ms Evans received the following SMS message from Mr Maddox:
Hey Tara. Hope you’re good.
I’ve been in communication with James and he would like you to commence work here at the DFO as of next week doing 30 hours a week like Nicolle and I are doing ?? I will be getting you to do a Tues- Sat roster like you use to do before!
(ii)Ms Evans replied to the SMS message, saying:
No sorry hun, like I said before it’s too far. I’m not prepared to do this. Hope you understand and are all well.
(iii)Mr Maddox replied to the SMS message, saying:
Okay well I’ve been in touch with James again and because you’re on Job Keeper – this payment is to keep your job. if we need you back you are meant to return to us when needed. If you are not prepared to do this then we will be needing you to submit your resignation. If you want to communicate further please get in contact with James. Thank you Dan
(It is common ground that the “James” referred to in the 8 July 2020 SMS Messages is Mr Togno.)
(h)on 13 July 2020 Ms Evans received the following message from the National Sales Manager, Mr Togno: Evans Affidavit at [13], Annexure TAE8 (“13 July 2020 Message”):
Tara,
Please see below your contract from 2015 which shows your Primary location to be "As directed"
All staff in WA are now required employees to be at our DFO store. Daniel will have you on the roster from this week.
(i)on 28 July 2020 Ms Evans received via email a letter from Oxford Shop: Evans Affidavit at [15], Annexure TAE10 (“28 July 2020 Letter”), stating:
1.We refer to your claim that you be retrenched and be paid redundancy pay rather than be the manager of our DFO store.
2. You stated in your email to James Togno of 23 July 2020:
'Please be advised that if I have not received advice of my redundancy by 5pm tomorrow I will be lodging a workplace bullying application with Fairwork Australia based on an "unreasonable work request" in that you expect me to travel 4 hours a day in travel to get to a new place of employment.'
3.Section 119(1)(a) of the Fair Work Act 2009 provides for an entitlement to redundancy pay if an employee is terminated at the employer's initiative as the employer no longer requires the job to be done by the employee to be done by anyone.
4. Oxford does require your job to be done and it is, therefore, not redundant.
5.Oxford's position is entirely consistent with your conditions of employment as a Store Manager which says, in relation to your "Primary Location" "As Directed", and is lawful.
6.Oxford also considers its request to be reasonable, noting that the DFO is about 30 kilometres from your home.
7.There is no basis for you to allege bullying in relation to reasonable management action.
8.Rather, it is unreasonable to expect Oxford to continue your employment in circumstances where you are declining its lawful and reasonable request to work at the DFO Perth store.
9. Should you fail to confirm in writing by 5.00pm on Friday 31 July 2020 that you are prepared to work at Oxford DFO store as its manager, Oxford will take it as a repudiation of your contract of employment and will treat your employment as being at an end.
(j)on 28 July 2020 Ms Evans responded to the above letter from Oxford Shop as follows: Evans Affidavit at [16], Annexure TAE 11 (reproduced unaltered):
I disagree with your statement as to the location “As Directed” as this refers to “as directed In the
letter of offer which states Joondalup as the location of employment.
On advice to date if you want to move employees around to different locations as you are stating
the contract would need to have a mobility clause which it does not have.
Any change must also be reasonable, you have stated that 30km that you are implying that if I owned
a car and had a drivers license that I could go straight there. I do not have a drivers license or a
car and rely on Public transport.
This matter is in dispute, I have a meeting with MKI Legal next Tuesday, 4 August 2020 at
10am.
I will advise my position on this matter after this appointment.
(k)on 3 August 2020 Ms Evans received an emailed letter from Oxford Shop: Evans Affidavit at [17], Annexure TAE12, stating:
1. We refer to our letter dated 28 July 2020 in which we stated:
"Should you fail to confirm in writing by 5.00pm on Friday, 31 July 2020 that you are prepared to work at Oxford DFO store as its manager, Oxford will take it as a repudiation of your contract of employment and will treat your employment as being at an end."
2.Given that you failed to confirm in writing by 5.00pm on Friday, 31 July 2020 that you were prepared to work at Oxford DFO store as its manager, Oxford took it as a repudiation of your contract of employment and treated your employment as being at an end.
(l)Ms Evan’s last day of employment was 2 August 2020: Evans Affidavit at [18], Annexure TAE4.
Cross-examined, Ms Evans gave the following evidence:
(a)it was 33 km from her home to the DFO Perth Airport Store: Transcript, p 7;
(b)the estimated driving time for the journey from her home to the DFO Perth Airport Store, by freeway and highway, was 27 minutes: Transcript, p 8;
(c)some employees had moved and “floated” between stores, and been moved to cover for absences in other stores, from time to time: Transcript, pp 9-10;
(d)she understood that Oxford Shop considered her to be a good performer: Transcript, p 10;
(e)she accepted that she was directed by Oxford Shop to work at the DFO Perth Airport Store: Transcript, pp 11 and 17;
(f)she did not dispute that if she moved to the DFO Perth Airport Store she was to be paid as a Store Manager, but disputed that she would be carrying out the duties of a Store Manager: Transcript, pp 11-12;
(g)she was never advised by Oxford Shop that she would not be employed as a Store Manager: Transcript, p 12;
(h)her hours were to be reduced from 38 per week to 30 per week at the DFO Perth Airport Store, and she assumed there would be a drop in pay, but had not been told by anyone at Oxford Shop that there would be a drop in pay as a result of that reduction in hours: Transcript, pp 12-13;
(i)the Conditions of Employment applied to her wherever she worked: Transcript, p 13;
(j)when she moved to the Wesley Quarter store no new Employment Contract was entered into: Transcript, p 13;
(k)on 22 April 2020 she signed a JobKeeper Employee Nomination Notice: Transcript, p 14, Exhibit 1;
(l)she did not seek new employment for at least a few months after the termination of her employment with Oxford Shop: Transcript, p 15;
(m)the travel time set out in annexure TAE 5 to the Evans Affidavit is correct (that time being 103 minutes from her home to the DFO Perth Airport Store by a combination of walking, bus, train, walking, bus and walking) leaving home at 8.01 am for a 10.00 am commencement at the DFO Perth Airport Store: Transcript, p 16;
(n)in relation to her role and duties that she was to perform at the DFO Perth Airport Store: Transcript, p 19, that:
(i)“[t]he rest of the staffing situation I really don’t know, I wasn’t informed”;
(ii)“I was not asked to work at the store as the Store Manager, no, I was not”… [t]hey were not specific about anything, no”; and
(iii)“I had no idea what to – really didn’t know what was happening to be perfectly honest with you”;
(o)said that nothing was officially said to her about her being on the same classification and pay when she went to the DFO Perth Airport Store: Transcript, p 19;
(p)she continued to be paid JobKeeper until her employment ceased: Transcript, p 20;
(q)she refused to go to, and work at, the only store that Oxford Shop had in Perth in July 2020: being the DFO Perth Airport Store: Transcript, p 20-21; and
(r)Oxford Shop wanted her to “perform an entirely new job [about] which [she] was not consulted … at an entirely new location”: Transcript, p 21.
In re-examination Ms Evans said she:
(a)had reasonable grounds for refusing to go to the DFO Perth Airport Store; and
(b)was not satisfied with the communication between herself and Oxford Shop at the time she was being directed to work at the DFO Perth Airport Store.
Subpoenaed to give evidence by Ms Evans, Mr Maddox in examination-in-chief said that:
(a)he was the Cluster Manager for Oxford Shop and supervised Ms Evans when she was working for Oxford Shop: Transcript, p 23;
(b)he was also currently the Store Manager for the DFO Perth Airport Store: Transcript, p 23;
(c)when Ms Evans moved from the Joondalup store to the Wesley Quarter store she was the Store Manager at the latter and nothing changed with her position, she just relocated: Transcript, p 23;
(d)when someone called Monisha resigned there was no Store Manager at the DFO Perth Airport Store: Transcript, p 24
(e)if Ms Evans had relocated to the DFO Perth Airport Store he would have been the Cluster Manager and Ms Evans would have been the Store Manager: Transcript, p 25;
(f)his duties as Cluster Manager involved supervising the stores and assisting with the trading of product, making sure the rostering is done, payroll submitted, as well as sales duties, and that those duties could also be considered to be a Store Manager’s duties: Transcript, p 26;
(g)when Ms Evans did not commence work at the DFO Perth Airport Store as a Store Manager, the position of Store Manager was not advertised and no other staff member was promoted into it: Transcript, p 26;
(h)when Ms Evans did not commence work at the DFO Perth Airport Store as a Store Manager, Mr Maddox engaged some part-time employees, but nothing changed on paper, and he remained Cluster Manager, but given that he only had one store he was “essentially … store managing”: Transcript, p 26;
(i)in relation to Ms Evans’ position as a Store Manager, nothing would have changed, save for the temporary reduction in trading hours due to the COVID-19 pandemic: Transcript, p 27;
(j)he and Ms Evans would have worked roughly the same hours: Transcript, p 27;
(k)at the DFO Perth Airport Store the staff rostering, notification staff absences, and direction of staff would all have been matters for Mr Maddox as Cluster Manager, and Ms Evans’ role as a Store Manager “was to manage that store and look after the people around you and get sales done. I was just … [a head] above in terms of rankings and so I made sure you [Ms Evans] are okay and got everything done that way”: Transcript, p 27.
In cross-examination Mr Maddox gave evidence that:
(l)had Ms Evans gone to the DFO Perth Airport Store she would still have been a Store Manager: Transcript, p 29;
(m)Ms Evans’ status “never changed” with her moves from the Joondalup store to the Wesley Quarter store, and would not have changed at the DFO Perth Airport Store: Transcript, p 29; and
(n)with the closure of stores, nothing changed in terms of the status or duties of Mr Maddox’s role as Cluster Manager: Transcript, p 30.
In re-examination Mr Maddox gave evidence that he would primarily be undertaking management duties associated with the DFO Perth Airport Store (staff direction, leave arrangements, rostering), just as he had done with all three stores in Perth before the COVID-19 pandemic: Transcript, p 31.
Mr Togno’s evidence-in-chief was as follows:
(a)he agreed with the contents of the Evans Affidavit, except for [10], [13], [16] and [19] thereof: Togno Affidavit at [3];
(b)Oxford Shop required Ms Evans’ job to be performed, but she refused to do so and wanted to be paid redundancy, a claim which Oxford Shop rejected: Togno Affidavit at [4];
(c)Ms Evans mainly worked at the Joondalup store, but would also assist as needed at the Wesley Quarter store, and worked at the DFO Perth Airport Store when it opened in November 2018: Togno Affidavit at [8];
(d)until November 2019 Oxford Shop had three stores in Perth, at Joondalup, Wesley Quarter and the DFO Perth Airport Store, but on 17 November 2019 the Joondalup store was closed, and Ms Evans went to work at the Wesley Quarter store: Togno Affidavit at [5]-[7] and [9];
(e)Oxford Shop experienced a significant decline in trade as a result of COVID-19 restrictions: Togno Affidavit at [10];
(f)Oxford Shop closed the Wesley Quarter store on about 15 April 2020: Togno Affidavit at [10];
(g)Oxford Shop did not retrench the four employees from the Wesley Quarter store when it closed, but continued to employ them, paying them from the JobKeeper scheme which Oxford Shop was eligible to access due to its downturn in trade: Togno Affidavit at [11];
(h)when Oxford Shop considered there was sufficient work at the DFO Perth Airport Store it requested the four employees (including Ms Evans) who had previously worked at the Wesley Quarter store, and who were on JobKeeper scheme payments, to work at the DFO Perth Airport Store: Togno Affidavit at [12];
(i)Oxford Shop’s request to Ms Evans to work at the DFO Perth Airport Store was to work on the days and hours she had previously worked at the Wesley Quarter store, receiving the same pay, but Ms Evans refused the request, and as a result, remained on JobKeeper payments: Togno Affidavit at [13]; and
(j)Oxford Shop found Ms Evans’ refusal to work at the DFO Perth Airport Store to be unacceptable and advised her that she was required to do work at the DFO Perth Airport Store, and that if she was not prepared to do so, it would consider that conduct to be a repudiation of the Employment Contract: Togno Affidavit at [14].
In cross-examination Mr Togno was asked one disallowed question, and as a consequence was not re-examined.
The Court has not had regard to evidence from any of the witnesses that relates to the conduct of other employees when being relocated, or as to whether other employees who have been relocated travel to work, and from where and by what means they do so. That evidence was irrelevant to the issue of interpretation of the words of the Employment Contract and was otherwise inadmissible hearsay.
EMPLOYMENT CONTRACT
Some terms
The Employment Offer which was accepted by Ms Evans expressly provided that the Employment Contract was formed by two documents, namely the “Conditions of Employment” and the “Position Description”.
From the Conditions of Employment and Position Description respectively, it is plain that:
(a)Ms Evans was employed in the position of, and with the job title of, “Store Manager”; and
(b)the “Primary Location” and “Location” respectively of Ms Evans’ employment were said to be “As Directed”. At a minimum, therefore, it was an express term of Ms Evans’ Employment Contract that she work in a location as directed by Oxford Shop.
The fact that there is an express term in a formally concluded contract of employment meaningfully complete on its face, means that there is no room for an implied term in the contract of employment to the contrary of the express term: Byrne & Frew v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410; (1995) 69 ALJR 797; (1995) 61 IR 32; (1995) 131 ALR 422; (1995) 38 AILR 3-194 (“Byrne & Frew”); CLR at 422 per Brennan CJ, Dawson and Toohey JJ and 449-450 per McHugh and Gummow JJ; BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266; (1977) 52 ALJR 20; (1977) 45 LGRA 62; (1977) 16 ALR 363; CLR at 283 per Lord Simon of Glaisdale, Viscount Dilhorne and Lord Keith of Kinkel. That, of course, gives rise to the question as to what is meant by the words “As Directed” in the express term.
There is also no evidence of conduct by, or a mutual intention of, the parties, which would indicate that the express term as to location had been varied subsequent to entering into the Employment Contract: Morris v Baron & Co [1918] AC 1; [1917] WN 297; Westpac Banking Corporation v Wittenberg and Others [2016] FCAFC 33; (2016) 242 FCR 505; (2016) 256 IR 181; (2016) 330 ALR 476, FCR at [254]-[262] per Buchanan J. If anything, the conduct of the parties, and in particular Ms Evans, in relocating to the Wesley Quarter store when the Joondalup store closed, and by providing assistance at the DFO Perth Airport store immediately prior to its opening, is conduct consistent with the meaning of the express term “As Directed”, but, save arguably as to the issue of reasonableness discussed below: see [68]-[83] below, it is unnecessary to rely on any conduct of the parties subsequent to entering into the Employment Contract, and impermissible to do so to affirm the actual terms of the Employment Contract: WorkPac Pty Ltd v Rossato [2021] HCA 23; (2021) 95 ALJR 681; (2021) 309 IR 89; (2021) 392 ALR 39 (“Rossato”) at [41] and [66]-[67] per Kiefel CJ, Keane, Gordon, Edelman, Steward and Gleeson JJ; C Sappideen, et al, Macken’s Law of Employment (Eighth Edition) (Sydney: Thomson Reuters, 2016) at p 159 (and cases there cited).
Interpretation of the Employment Contract - “As Directed”
The Court turns then to the meaning of the words “As Directed” as they appear in the Employment Contract.
Some principles
The Employment Contract has to be interpreted according to ordinary contractual principles: Connelly v Wells (1994) 55 IR 73; (1994) 10 NSWCCR 396 (“Connelly”), IR at 74 per Gleeson CJ, recently cited in Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1; (2022) 96 ALJR 89; (2022) 312 IR 1 (“Personnel Contracting”) at [124] per Gageler and Gleeson JJ (see also, as to interpretation according to ordinary contractual principles, at [162] per Gordon J). In Connelly, it was observed by the New South Wales Court of Appeal (citing Narich Pty Ltd v Commissioner of Pay-Roll Tax [1983] 2 NSWLR 597; (1983) 58 ALJR 30; (1983) 15 ATR 153; (1983) 50 ALR 417; (1983) 84 ATC 4035, NSWLR at 601 per Lords Keith of Kinkel, Elwyn-Jones, Roskill, Brandon of Oakbrook and Templeman) that:
Where the relationship between two persons is founded in contract, the character of the relationship depends upon the contract. In the absence of a suggestion that a contract was varied after it was originally made, its meaning and effect must be determined as at the time it was entered into. If the contract is in writing, then the court which is considering the nature of the relationship between the parties is directed to an examination of the terms of the written agreement in the light of the circumstances surrounding its making.
In recent cases, the High Court has reinforced the primacy of the written terms of the contract in deducing the nature of the terms and employment relationship.
In Rossato at [65] per Kiefel CJ, Keane, Gordon, Edelman, Steward and Gleeson JJ the High Court said that “… where there are express terms of the contract between the parties, they must be given effect unless they are contrary to statute”.
In Personnel Contracting at [43] per Kiefel CJ, Keane and Edelman JJ, the High Court said:
While there may be cases where the rights and duties of the parties are not found exclusively within a written contract, this was not such a case. In cases such as the present, where the terms of the parties' relationship are comprehensively committed to a written contract, the validity of which is not challenged as a sham nor the terms of which otherwise varied, waived or the subject of an estoppel, there is no reason why the legal rights and obligations so established should not be decisive of the character of the relationship.
The Court, in undertaking the task of contractual interpretation, must begin with a consideration of the natural and ordinary meaning of the words of the contract: Hide & Skin Trading Pty Ltd v Oceanic Meat Traders (1990) 20 NSWLR 310 at 313 per Kirby P, and discern the intention of the parties from the words used in the contract: Australian Broadcasting Commission v Australian Performing Rights Association [1973] HCA 36; (1973) 129 CLR 99; (1973) 47 ALJR 526. In Vasram v AMP Life Ltd [2000] FCA 1916; (2000) ANZ Ins Cases 90-107 at [14] per Stone J the Federal Court observed as follows:
Where the words of the instrument [contract] have a clear and unambiguous meaning, it is neither necessary nor permissible to go beyond that meaning. This is so even if meaning appears “capricious or unreasonable, and notwithstanding that it may be guessed or suspected that the party intended something different”; Australian Broadcasting Commission v Australian Performing Rights Association (above) [CLR] at 109.
Meaning of “As Directed”
The word “direct” is relevantly defined in the Oxford English Dictionary as follows:
6.
a. To give authoritative instructions to; to ordain, order, or appoint (a person) to do a thing, (a thing) to be done.
b. intransitive or absol. To give directions; to order, appoint, ordain.
c. transitive. To order, appoint, prescribe (a thing to be done or carried out).
d. To prescribe (medically). Obsolete.
e. In a national emergency, etc.: to assign (workers) to a particular industry or employment.
(Oxford University Press, 2022, Oxford English Dictionary, online at last accessed 30 May 2022)
In the Macquarie Dictionary, the word “direct” is relevantly defined as:
2. To give authoritative instructions to: I directed him to do it.
3. To command, order or ordain: I directed that he do it.
(Macmillan Publishers Australia, 2022, Macquarie Dictionary, online at last accessed 30 May 2022)
In context, the phrase “As directed” in the Employment Contract must therefore mean “as instructed” or “as ordered”. In the context of an employment relationship between Oxford Shop and Ms Evans, this must mean “as Ms Evans was instructed or ordered to do by Oxford Shop”.
CONSIDERATION OF THE SUBMISSIONS AND ISSUES ARISING
Whether “As Directed” ambiguous
Ms Evans submitted the wording of the Employment Contract, and in particular the phrase “As Directed” was ambiguous. As the discussion above demonstrates there is no ambiguity in the words “As Directed”, and it has the simple meaning of as instructed or as ordered. The finding that there is no ambiguity in the words “As Directed” means that Ms Evans’ submission that the Employment Contract ought to be construed contra proferentem, that is, against Oxford Shop, must fail.
Whether “As Directed” in Employment Offer
Ms Evans also submitted that she understood the meaning of “As Directed” to be as directed in the Employment Offer, that is, to be the Store Manager at the Joondalup store. A number of factors set out hereunder tell against this submission, and mean that it is not made out:
(a)first, a contract is not to be construed by reference to the subjective intentions of the parties, let alone one party: DTR Nominees Pty Ltd v Mona Homes Pty Ltd [1978] HCA 12; (1978) 138 CLR 423; (1978) 52 ALJR 360; (1978) 19 ALR 223; CLR at 429 per Stephen, Mason and Jacobs JJ; Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; (2004) 218 CLR 451; (2004) 78 ALJR 1045; (2004) 208 ALR 213 at [22] per Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ;
(b)second, the Employment Offer is not, as it makes plain, the Employment Contract, the Employment Contract being compromised of the Conditions of Employment and Position Description documents: see [28] above; and
(c)third, the Employment Contract does not prescribe the location as being “As Initially Directed”, but rather “As Directed”. Not only is it not what the Employment Contract says, but were the words “As Directed” to be interpreted as “As Initially Directed” that would have the effect, from the commencement of the Employment Contract, of rendering otiose the term as to location in the Employment Contract. The ordinary meaning of that term (as discussed above at [40]) is one which ought to continue to bear for the remaining duration of the Employment Contract, on the basis that all words in the Employment Contract have ongoing meaning and work to do: Masters Home Improvement Aust Pty Ltd v Aventus Cranbourne Thompsons Road Pty Ltd [2019] VSC 428; (2019) 59 VR 80 at [46] per Croft J.
Whether Employment Contract repudiated
Ms Evans’ submission that Oxford Shop repudiated the Employment Contract, as the proposed changes were a radical departure from the express terms of the Employment Contract, is not made out in circumstances where the express term (“As Directed”), on its proper construction, rendered lawful a direction from Oxford Shop to Ms Evans to work at a different location at any time during the term of the Employment Contract. The giving of such a direction to Ms Evans by Oxford Shop is not in dispute as a matter of fact in these proceedings, and does not fulfil the requirement for breach of contract by repudiation, because it does not evince an intention on the part of Oxford Shop not to be bound by the Employment Contract, nor to fulfil the terms of the Employment Contract in a manner substantially inconsistent with its obligations thereunder, nor is it a breach, either at all or one justifying termination by Ms Evans: Progressive Mailing House Pty Ltd v Tabali Pty Ltd [1985] HCA 14; (1985) 157 CLR 17; (1985) 59 ALJR 373; (1985) 57 ALR 609; CLR at 33 per Mason J and 40 per Brennan J; Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd [2007] HCA 61; (2007) 233 CLR 115; (2007) 82 ALJR 345; (2007) 241 ALR 88; [2008] Aust Contract Reports 90-279 at [44] per Gleeson CJ, Gummow, Heydon and Crennan JJ.
Mobility clause
Ms Evans also submitted that the Employment Contract had no express term for mobility, alternatively, no mobility clause, and that Oxford Shop was therefore unable to direct her to work at a different location, citing Han Jian v NHP Electrical Product Pty Ltd [2004] AIRC 1227 (“Han Jian”). This submission is not made out because:
(a)there is an express term (“As Directed”) which, accorded its proper and ordinary meaning, is a mobility clause in the Employment Contract, providing, as it does, Oxford Shop with the capacity to lawfully direct Ms Evans to work at a different location. As the Full Bench of the AIRC observed in Re Rubber, Plastic and Cable Making Industry (Consolidated) Award 1983 (1983) 31 IR 35:
A relocation will not be in breach of the contract of employment if transferability within employment is an express or implied term of the original contract of employment …
(b)in the Conditions of Employment, which form part of the Employment Contract, it is the “Primary Location” which attaches to the words “As Directed”, and the use of the phrase “Primary Location” indicates on its ordinary meaning that there may be another location or locations at which Ms Evans may work;
(c)Han Jian is a decision by a single Commissioner of the then Australian Industrial Relations Commission (“AIRC”) resolving an industrial dispute concerning one of 56 employees being relocated from an existing facility, at Richmond in the state of Victoria, to a new facility at Laverton in the same state: Han Jian at [2] per Hingley C. In finding that the employee concerned had been made redundant under the terms of the relevant enterprise agreement, the AIRC expressly found that the employee’s contract provided for his employment at Richmond and that there was no express or implied term of the employee’s contract which provided for his employment at Laverton: Han Jian at [14] per Hingley C. Further, the AIRC’s decision turned upon the specific terms of the redundancy clause in the enterprise agreement: Han Jian at [46]-[47] and [61] per Hingley C, and the requirement in s 93A of the then Workplace Relations Act 1996 (Cth) which made it mandatory for the AIRC to take account of the principles embodied in the International Labour Organisation’s Workers with Family Responsibilities Convention 1981 (“Family Responsibilities Convention”). By contrast, in this case:
(i)there is an express term (“As Directed”), which, on its proper construction, rendered lawful a direction from Oxford Shop to Ms Evans to work at a different location at any time during the term of the Employment Contract;
(ii)no reliance was placed, by either Ms Evans or Oxford Shop, upon a mobility type clause in the terms of any industrial instrument; and
(iii)the Court is not required to take into account or apply the Family Responsibilities Convention,
and in those circumstances, Han Jian is distinguishable and of no assistance in the determination of this matter. Further, the Court observes that as a decision of a single Commissioner of the AIRC, Han Jian is not binding on this Court, in any event.
Witnesses’ evidence and credibility
Before dealing with some more contentious issues, it is necessary to make some observations with respect to the credibility of the witnesses, and how the Court ought to treat their evidence.
Ms Evans’ evidence was largely uncontroversial, but in some areas her evidence was confused and in other areas appeared to be influenced by the nature of the case and the outcome that she sought. Mr Togno’s affidavit evidence was not challenged by cross-examination by Ms Evans, and the Court accepts his evidence. The evidence of Mr Maddox was given openly and truthfully. Significantly, in relation to operational and management issues, Mr Maddox’s evidence was clear and cogent. Where Ms Evans’ evidence conflicted with that of Mr Togno, and particularly Mr Maddox, the Court has preferred the evidence of Mr Togno and Mr Maddox to that of Ms Evans.
Avoidance of redundancy payment
Ms Evans also submitted that Oxford Shop was intending to avoid the making of redundancy payments by enforcing the move to DFO Perth Airport Store. This assertion is contrary to the facts, including facts established by the evidence of Ms Evans’ own witness, Mr Maddox, and was not put to Mr Togno in cross-examination. The evidence establishes that:
(a)Oxford Shop wanted Ms Evans to go to work at the DFO Perth Airport Store: see 8 July 2020 Messages;
(b)in any event, the DFO Perth Airport Store was the only Oxford Shop store that remained open in Western Australia, and if Ms Evans was to be employed by Oxford Shop it could only have been at the DFO Perth Airport Store, and she was “required” by Oxford Shop to work there in accordance with her “Primary Location” being “As Directed”: see 13 July 2020 Message; Togno Affidavit at [12] and [14];
(c)Oxford Shop required the job of Store Manager at the DFO Perth Airport Store to be done by Ms Evans: 28 July 2020 Letter; Togno Affidavit at [8];
(d)on Ms Evans’ own evidence she was considered by Oxford Shop to be a good performer: Transcript (Evans) at p 10, and the Court therefore infers that it is unlikely that Oxford Shop would want to make her redundant;
(e)Ms Evans was not advised by Oxford Shop that she would not be employed as a Store Manager at the DFO Perth Airport Store: Transcript (Evans) at p 12;
(f)if Ms Evans had returned to work at the DFO Perth Airport Store she would have returned in the position of Store Manager: Transcript (Maddox) at p 25; and
(g)if Ms Evans had returned to work at the DFO Perth Airport Store in the position of Store Manager nothing in relation to her duties, pay or status as a Store Manager would have changed (save possibly for the temporary reduction in hours from the 38 to 30 due to the COVID-19 pandemic): Transcript (Maddox) at pp 27 and 29.
For the above reasons, the Court finds that there was no attempt by Oxford Shop to avoid making redundancy payment to Ms Evans, and that at the time her employment terminated (to put the termination neutrally) she was a required employee in the position of Store Manager at the DFO Perth Airport Store.
No management duties
Ms Evans also submitted that her position as Store Manager with Oxford Shop was redundant because, on the evidence of Mr Maddox, there were no management duties for her to perform in that role at the DFO Perth airport store.
Before dealing with the evidence of Mr Maddox, it is necessary to examine the Position Description for Store Manager with Oxford Shop: Evans Affidavit, Annexure TAE3.
The Position Description prescribes that:
(a)the Store Manager reports to the “Cluster Manager, State Manager”;
(b)the objective of the role is:
To ensure the successful day-to-day operations of the store through the professional management of operations and staff. … plays a pivotal role in making sure that the store meets and exceeds all set targets across Key Result Areas and makes a valuable contribution to the continued success of the company overall.
(c)The duties and responsibilities of the Store Manager are set out under a number of primary headings, as follows:
Sales Performance
Duties/Responsibilities (KRA)
•Utilise your advanced sales & customer service skills to ensure that personal sales targets & KPI benchmarks are consistently met or exceeded.
•Ensure that the store is meeting sales budgets/targets on an ongoing basis.
•Ensure all store staff are meeting set KPIs through detailed analysis of daily/weekly/monthly sales reports across all KRAs.
•Monitor store performance on a continual basis, making proactive decisions to improve store performance where appropriate
•Provide on the job coaching and training with staff as required.
Customer Service
•Constantly monitor and ensure that Customer Service standards are being upheld or exceeded at all times.
•Deal with issues relating to sub-standard customer service in conjunction with Cluster Manager.
•Personally handle customer complaints & staff grievances without the need to escalate grievances to the Cluster Manager.
Stock/Store Maintenance
•Identify & advise Cluster Manager of any stock shortages, refills or transfers required.
•Carry out stock transfers as required according to correct procedures.
•Ensure the presentation of all stores is in keeping with Company standards and Visual Merchandising plans at all times.
•Identify, report & track any maintenance issues.
People & Performance Management
•Coordinate & contribute to monthly store meetings to identify potential issues at a store level.
•Identify & rectify any performance issues with staff members.
•Actively assist with identifying learning & development needs of staff.
•Ensure that all staff are acting in accordance with HR Policies and Practices, Operational Procedures and the Companies Code of Conduct at all times.
•Conduct Annual Performance Appraisals for all store staff.
Administration
•Banking to be reconciled daily in accordance with Operational Policy.
•Ad hoc reporting as requested by Cluster or State Managers
Other Duties
•Ad hoc duties as requested by Director(s)
Ms Evans’ evidence in relation to the role and duties that she was to perform at the DFO Perth Airport Store was that:
(a)she was not asked to work at the DFO Perth Airport Store as the Store Manager, and that Oxford Shop was not specific in that regard; and
(b)she really did not know what was happening: see [20(n)(iii)] above.
Mr Maddox’s evidence (see [22] above) in relation to the role and duties that Ms Evans would have performed had she agreed to go to the DFO Perth Airport store was that:
(a)if Ms Evans had relocated to the DFO Perth Airport Store he would have been the Cluster Manager and Ms Evans would have been the Store Manager;
(b)his duties as Cluster Manager involved supervising the stores and assisting with the trading of product, making sure the rostering is done, payroll submitted, as well as sales duties, and that those duties could also be considered to be a Store Manager’s duties;
(c)in relation to Ms Evans’ position as a Store Manager, nothing would have changed save for the temporary reduction in trading hours due to the COVID-19 pandemic;
(d)at the DFO Perth Airport Store the staff rostering, notification staff absences, and direction of staff would all have been matters for Mr Maddox as Cluster Manager, and Ms Evans’ role as a Store Manager “was to manage that store and look after the people around you and get sales done. I was just … [a head] above in terms of rankings and so I made sure you [Ms Evans] are okay and got everything done that way”: Transcript, p 27.
(e)had Ms Evans gone to the DFO Perth Airport Store she would still have been a Store Manager, and that her status “never changed”: Transcript, p 29, when she moved from the Joondalup store to the Wesley Quarter store, and would not have changed at the DFO Perth Airport Store;
(f)with the closure of stores, nothing changed in terms of the status or duties of Mr Maddox’s role as Cluster Manager; and
(g)he would primarily be undertaking management duties associated with the DFO Perth Airport Store (staff direction, leave arrangements, rostering), as he had done with all three stores in Perth before the COVID-19 pandemic.
In relation to Ms Evans’ submission that had she gone to work at the DFO Perth Airport Store, she would have had no management duties to perform and, therefore, would not have been a Store Manager at the DFO Perth Airport Store, the Court finds as follows:
(a)on the available contemporaneous written evidence, as well as Mr Maddox’s evidence, Ms Evans would have gone to the DFO Perth Airport Store as the Store Manager, and her evidence that she did not really know what was happening was, at best, confused, and at worst, disingenuous;
(b)had Ms Evans complied with the direction to work at the DFO Perth Airport Store the evidence clearly establishes that she would have been employed in the position of Store Manager, and that Mr Maddox would have reverted to the position of Cluster Manager rather than filling the positions of Cluster Manager and Store Manager concurrently (and recognising that there was a degree of overlap between the duties of those two positions);
(c)the few management tasks specifically to be undertaken by Mr Maddox (as referred to in his examination-in-chief) were not such as to substantially, significantly or fundamentally alter the nature of the duties of the position of Store Manager; and
(d)the vast majority of the duties of the Store Manager set out in the Position Description were not the subject of any further evidence or cross-examination, and it is evident that had Ms Evans gone to work as the Store Manager at the DFO Perth Airport Store she would have been required to perform, if not all, then at least the majority of the major and substantial duties of the position of Store Manager and would have been employed as Store Manager, as was clearly intended by Oxford Shop.
In the above circumstances, Ms Evans has failed to make out her submission that she would not have had management duties to perform had she gone to work as directed by Oxford Shop in the position of Store Manager at the DFO Perth Airport Store, and the Court is satisfied that had she gone to work as so directed she would have been required to perform, if not all, then at least the majority of the major and substantial, duties of the position of Store Manager, and would have been employed as Store Manager.
JobKeeper scheme
In written submissions, Ms Evans asserted that she would receive less remuneration because Oxford Shop proposed to reduce her hours to 30 hours per week. She further asserted that Oxford Shop was deliberately over-staffing the DFO Perth Airport store, and was doing so, so that the entire staff payroll was paid for under the JobKeeper scheme. In relation to her own circumstances, she submitted that the purpose of the JobKeeper scheme was not to create new roles for employees in a different location, with different hours and with a different status, on a permanent basis.
In relation to the allegations that Oxford Shop was using the JobKeeper scheme to:
(a)pay for its entire staff payroll; or
(b)create new roles in different locations with different hours and with a different status, on a permanent basis,
there is no evidence to support them (and the Court notes they were not put to Mr Togno).
The evidence relevantly establishes the following:
(a)that when the Joondalup store closed in November 2019 Ms Evans moved from a position as Store Manager at the Joondalup store to a position as Store Manager at the Wesley Quarter store, a move consistent with what the Court has found to be the proper interpretation of the phrase “As Directed” in her Employment Contract: see [40] above;
(b)that the Wesley Quarter store closed on or about 15 April 2020;
(c)Oxford Shop did not retrench the employees, including Ms Evans, from the Wesley Quarter store, but continued to employ them, paying them through the JobKeeper scheme;
(d)that following the resignation of Monisha there was no Store Manager at the DFO Perth Airport store;
(e)that when Oxford Shop considered there was sufficient work at the DFO Perth Airport Store to enable the four employees, including Ms Evans, formerly employed at the Wesley Quarter store, to be employed at the DFO Perth Airport Store, it requested those employees work there, and in Ms Evans case ultimately directed her to do so; and
(f)although Ms Evans was to initially be rostered for 30 hours a week at the DFO Perth Airport store if she went to work there as a Store Manager, it is not clear on the evidence whether she would have continued to receive JobKeeper payments, or have received full payment for 38 hours a week under the Employment Contract.
For reasons set out earlier in these Reasons for Judgment: see [40] above, Oxford Shop was lawfully entitled under the Employment Contract to direct Ms Evans to work as a Store Manager at the DFO Perth Airport Store, and the evidence does not establish that Oxford Shop was utilising the JobKeeper scheme in the manner or for the purposes asserted by Ms Evans.
The State Award
In Ms Evans’ written submissions she asserts, by reference to a partial copy of the Shop and Warehouse (Wholesale and Retail Establishments) State Award 1977 (“State Award”) attached to those submissions, that Oxford Shop had a duty to notify and discuss change, and to use dispute resolution processes in the State Award and that an alleged failure to do so was a breach of contract. It would appear that the alleged breach is of the Employment Contract, and is in addition to the alleged breaches of ss 117 and 119 of the FW Act.
There are a number of issues, set out hereunder with respect to the application of the State Award, which preclude the Court from making any finding or awarding any relief in relation to the alleged breach of contract based on the State Award.
First, obligations under the State Award are not imported into the Employment Contract:
(a)unless expressly incorporated by the parties: Byrne & Frew, CLR at 420-422 per Brennan CJ, Dawson and Toohey JJ, which is not the case here, there being no term of the Employment Contract importing any terms of the State Award into the Employment Contract; and
(b)are not implied into the Employment Contract unless it is necessary to do so for the reasonable or effective operation of the Employment Contract. As with the contract of employment in Byrne & Frew, the Employment Contract can operate reasonably and effectively without importing any term from the State Award: Byrne & Frew, CLR at 422-423 per Brennan CJ, Dawson and Toohey JJ and 444-446 per McHugh and Gummow JJ.
This is not to deny the operation of the State Award, but rather to point out that it gives rise to statutory rather than contractual obligations: Byrne & Frew, CLR at 422-426 per Brennan CJ, Dawson and Toohey JJ. But it does mean that no breach of the State Award can found a breach of the Employment Contract.
Second, a small claim is for an “amount” to which the employee is entitled: FW Act, s 548(1)(b) and (1A). The clauses of the State Award relied on by Ms Evans give rights of notification of change, and of process with respect to dispute resolution, but do not give rise to a right to payment of any “amount” under the State Award or otherwise for the purposes of s 548(1)(b) and (1A) of the FW Act.
Third, at a preliminary hearing on 5 July 2021 (two days before the final hearing) Ms Evans confirmed that, for the purposes of the entitlement that she was claiming (that is, under ss 117 and 119 of the FW Act) “[n]othing” turned upon the terms of the State Award: Transcript, 5 July 2021, p 6.
Fourth, the State Award was not tendered, or sought to be tendered, at the hearing (a course consistent with the confirmation given at the preliminary hearing on 5 July 2021). To the extent that Ms Evans might still seek to argue that the State Award applied by reason of cl 3 – Scope, which provides that the State Award “… shall apply to all workers employed in any calling or callings herein mentioned in the industry or industries carried on by the Respondents named in Schedule “C” and to all employers employing those workers” the Court observes that the callings referred to in the State Award include shop assistant, storeman, packer, window dresser/visual merchandiser and ticket writer, but do not include “Store Manager” or any store management positions: see State Award, cll 6 – Definitions and 28 – Wages. Ms Evans’ position as a Store Manager was not, therefore, covered by the State Award, and it is not therefore possible for her to rely upon it for any alleged breach of its terms, whether in contract or otherwise.
For the reasons set out above, the Court considers that the State Award did not give rise to any claim or entitlement on the part of Ms Evans in relation to her employment as a Store Manager with Oxford Shop.
Whether direction reasonable
Law
An employer has no general duty to act reasonably, but an order or direction which is lawful must also be reasonable. In R v Darling Island Stevedoring and Lighterage Company; ex parte Halliday and Sullivan [1938] HCA 44; (1938) 60 CLR 601; (1938) 12 ALJ 172 (“Darling Island Stevedoring”), CLR at 621-622 per Dixon J it was observed that:
If a command relates to the subject matter of the employment and involves no illegality, the obligation of the servant to obey it depends at common law upon its being reasonable. In other words, the lawful commands of an employer which an employee must obey are those which fall within the scope of the contract of service and are reasonable. Accordingly, when the award was framed, the expression “reasonable instructions” was adopted in describing the employee’s duty to obey. But what is reasonable is not to be determined, so to speak, in vacuo. The nature of the employment, the established usages affecting it, the common practices which exist and the general provisions of the instrument, in this case an award, governing the relationship, supply considerations by which the determination of what is reasonable must be controlled. When an employee objects that an order, if fulfilled, would expose him to risk, he must establish a case of substantial danger outside the contemplation of the contract of service ….
The above observations have been applied regularly over the years, including by the Federal Court: see Thompson v IGT Australia Pty Ltd [2008] FCA 994; (2008) 173 IR 395 at 407-409 per Goldberg J (and cases there cited). It follows that a finding of unreasonableness ought not to be made lightly, and ought to relate to a substantial matter outside the contemplation of a contract of employment.
With effect from 9 April 2020, the provisions of Part 6-4C of the FW Act dealing with the coronavirus economic response took effect. The objects of that Part (much of which has since been repealed), as outlined in s 789GB of the FW Act, were as follows:
(a) make temporary changes to assist the Australian people to keep their jobs, and maintain their connection to their employers, during the unprecedented economic downturn and work restrictions arising from:
(i) the COVID-19 pandemic; and
(ii) government initiatives to slow the transmission of COVID-19; and
(b) help sustain the viability of Australian businesses during the COVID-19 pandemic, including by preparing the Australian economy to recover with speed and strength after a period of hibernation; and
(c) continue the employment of employees; and
(d) ensure the continued effective operation of occupational health and safety laws during the COVID-19 pandemic; and
(e) help ensure that, where reasonably possible, employees:
(i) remain productively employed during the COVID-19 pandemic; and
(ii) continue to contribute to the business of their employer where it is safe and possible for the business to continue operating.
Section 789GF of the FW Act provided for a JobKeeper enabling direction to change an employee’s work location, and specifically provided that if the location of work was not the employee’s home, then the new location ought not to require the employee to “travel a distance” which was “unreasonable in the circumstances”: FW Act, s 789GF(1)(d). Also imposed upon a JobKeeper enabling direction to change an employee’s work location were requirements of reasonableness and consultation under ss 789GK and 789GM respectively of the FW Act. Section 789GK of the FW Act provided that a direction did not apply “if the direction is unreasonable or circumstances”. Relevantly, the first note to s 789GK of the FW Act provides that a direction may be unreasonable depending upon “the impact of the direction on any caring responsibilities the employee may have”. Section 789GM of the FW Act is addressed further below: see [81]-[82] below.
Submissions
Concerning the reasonableness of the direction to work at the DFO Perth Airport store, Ms Evans made the following submissions:
(a)Ms Evans does not have a driver's license and relies on public transport to get to and from work;
(b)she had already made concessions with the previous move to the Wesley Quarter store;
(c)the move to the DFO Perth Airport Store would double the travel time and cost yet again;
(d)this change would also mean that Ms Evans would no longer be able to offer a caring service to an aged frail member of the family as the new work commitment including travelling to and from the DFO Perth Airport Store would use a total of 12 hours per day; and
(e)at the very end of her oral final submissions, and for the first time, specifically referred to whether there had been compliance with the consultation requirements in s 789GM of the FW Act.
Concerning the reasonableness of the direction to work at the DFO Perth Airport Store, Oxford Shop made very lengthy submissions, which can be adequately summarised as follows:
(a)there is no dispute that the direction would require some further travel and travel time for Ms Evans;
(b)an employee’s personal preference, for example, not to have a driver’s licence and therefore not to be able to drive to work, should not determine whether the direction to relocate is reasonable;
(c)the direction to work at the DFO Perth Airport store was a JobKeeper enabling direction under the repealed s 789GF of the FW Act, which permitted the making of directions for an employee to work from a different location;
(d)any change to 30 hours a week in the role of a Store Manager at the DFO Perth airport store was not permanent;
(e)a finding of unreasonableness should not lightly be made given the objects of the coronavirus economic response provisions in the FW Act;
(f)Ms Evans agreed to a nomination by Oxford Shop, as an employer under the JobKeeper scheme, and accepted payment for the period after the closure of the Wesley Quarter store and before she was directed to work at the DFO Perth Airport store; and
(g)the JobKeeper enabling direction given to Ms Evans to work at the DFO Perth Airport store was consistent with the objects of s 789GB of the FW Act.
Consideration – reasonableness of the direction
At the outset of this consideration, the Court notes that Ms Evans was entitled to be paid, and was paid, JobKeeper payments for the period between ceasing to work at the Wesley Quarter store and being directed to work at the DFO Perth Airport Store. To the extent that the matter was the subject of submissions by Oxford Shop, the Court’s view is that nothing, in terms of the reasonableness of the direction to work at the DFO Perth Airport Store, turns upon this matter.
In general terms, the reasonableness of the direction to Ms Evans to work at the DFO Perth Airport Store can be assessed by reference to the factors set out in Darling Island Stevedoring, CLR at 621-622 per Dixon J (set out at [68] above). Insofar as the direction was asserted to be a JobKeeper enabling direction regard must be had to the reasonableness and consultation requirements in ss 789GF, 789GK and 789GM of the FW Act, which must be construed in light of the objects of Part 6-4C of the FW Act, as set out in s 789GB of the FW Act.
The travel and travel time arising from the direction to work at the DFO Perth Airport Store meant that Ms Evans’ total travel time and distance from her home to the DFO Perth Airport Store was approximately 103 minutes and 33 kilometres, which would involve walking (six minutes), catching the bus (17 minutes), walking (3 minutes), catching a train (20 minutes), walking (seven minutes), catching a bus (30 minutes) and walking (20 minutes). The difference between the travel and travel time to the Wesley Quarter store and the DFO Perth Airport Store is approximately 57 minutes and 9 kilometres. That is the additional travel and travel time that it would have taken for Ms Evans to attend work at the DFO Perth Airport Store.
The reasonableness of the travel and travel time, and whether Ms Evans is required to “travel a distance” that is unreasonable, is to be assessed objectively against the total travel and travel time, not the additional travel and travel time it would take Ms Evans to attend work at the DFO Perth Airport Store vis-a-vis the Wesley Quarter store. It is also relevant that the mode of travel, and the time that it takes, is a consequence of a personal choice made by Ms Evans not to have a driver’s licence, and therefore to not be able to drive to work (which would entail a journey of approximately 30 minutes). There was no evidence that suggested that there was a reason other than personal choice for Ms Evans not having a driver’s licence. The Court respectfully refers to what was said by the Fair Work Commission in Association of Professional Engineers, Scientists and Managers, Australia v NSW Electricity Networks Operations Pty Limited t/a Transgrid [2018] FWC 6335 at [168] per Sams DP:
On one view, a daily 5 hour and 20 minute commute from home to work seems extraordinarily excessive. One might legitimately ask, why would one bother, when the daily hours of work are 7.47 hours? That said, the actual extra travel time experienced by Mr Tuszynski is around 3 hours. The primary reason for this excessive travel time is due to Mr Tuszynski’s own preferred mode of transport, being bike/ferry/train/bike. I do not criticise Mr Tuszynski’s preferred means of commute. However, a similar commute by car is between 1 hour 10 minutes and 1 hour 24 minutes one way (depending on which toll roads used). Moreover, TransGrid cannot be held responsible for Mr Tuszynski’s personal choices. In one sense, it might be said that Mr Tuszynski’s daily cycling regime, is an excellent means of him keeping fit and healthy – hardly a bad thing. On the other hand, less time spent with family is significant and regrettable.
The Court also notes that the direction to work at the DFO Perth Airport Store was a direction that was lawful under the Employment Contract, and that in accordance with the terms of the Employment Contract, Ms Evans had previously relocated from the Joondalup store to the Wesley Quarter store in the Perth CBD. These facts point to the existing terms and conditions and practice as applied to Ms Evans being consistent with not insignificant employee relocation “As Directed” by Oxford Shop.
In the circumstances, the travel and travel time are not such as to be unreasonable in a general sense, nor is it unreasonable as “a distance” for the purposes of s 789GF(1)(d) of the FW Act. In considering these matters it may be that there is some limit on the distance or time that ought not to be exceeded, but having to traverse 33 kilometres in a mid-sized city by public transport and perambulation for an hour and 43 minutes each way does not exceed that limit in this case.
For the purposes of the alleged JobKeeper location change enabling direction to Ms Evans to work at the DFO Perth Airport Store, it can be accepted that in assessing reasonableness the Court ought to have regard to any carers responsibilities being undertaken, or to be undertaken, by the employee, and ought to do so irrespective of Note 1 to s 789GK of the FW Act, which suggests that carer’s responsibilities are to be taken into account in assessing the reasonableness of a JobKeeper location change enabling direction. The issue only arises by reason of a written submission made by Ms Evans that she “would no longer be able to offer a caring service to an aged frail member of the family” due to the length of the work and commute commitments if she had to work at the DFO Perth Airport store. Ms Evans’ submissions do not, however, indicate who the family member is and their relationship to Ms Evans, why they are frail and require care, or the nature and extent of any care which might be required. Further, Ms Evans’ submissions do not say that she is actually required to provide care, has ever provided care, or will be required to provide care, but rather merely that she will no longer be able “to offer a caring service”. Critically, Ms Evans led no evidence concerning any caring responsibilities, and there is, therefore, no evidentiary basis upon which the Court can make any findings as to any carer’s responsibilities that Ms Evans may have had. There is therefore no evidence which would support a finding that any JobKeeper location change enabling direction was unreasonable by reason of any carer’s responsibilities that Ms Evans may have had.
As indicated above: see [72(e)] above, in final submissions and at the very conclusion of the hearing Ms Evans raised, specifically, and for the first time in any of the materials before the Court, s 789GM of the FW Act, which provides that:
789GM Consultation
(1) A jobkeeper enabling direction given by an employer to an employee of the employer does not apply to the employee unless:
(a) the employer gave the employee written notice of the employer’s intention to give the direction; and
(b) the employer did so:
(i) at least 3 days before the direction was given; or
(ii) if the employee genuinely agreed to a lesser notice period—during that lesser notice period; and
(c) before giving the direction, the employer consulted the employee (or a representative of the employee) about the direction.
(2) The regulations may require that a notice under paragraph (1)(a) must be in a prescribed form.
(3) Subsection (1) does not apply to a jobkeeper enabling direction (the relevant direction) given by an employer to an employee of the employer under a particular section of this Part if:
(a) the employer previously complied with paragraphs (1)(a), (b) and (c) in relation to a proposal to give the employee another direction under that section; and
(b) in the course of consulting the employee (or a representative of the employee) about the proposal, the employee (or the representative of the employee) expressed views to the employer; and
(c) the employer considered those views in deciding to give the relevant direction.
(4) An employer must keep a written record of a consultation under paragraph (1)(c):
(a) with an employee of the employer; or
(b) with a representative of an employee of the employer.
Because of the manner in which Ms Evans raised s 789GM of the FW Act, without notice and briefly, and in the final moments of the hearing, and because of the manner in which the Court then dealt with it: see Transcript p 43, Oxford Shop did not have an opportunity to deal with the issue. To that extent, Oxford Shop may be denied procedural fairness if the Court deals with the issue without giving it an opportunity to be heard on the effect of s 789GM of the FW Act, and in particular:
(a)whether it gave Ms Evans written notice of its intention to give a JobKeeper location change enabling direction: FW Act, s 789GM(1)(a);
(b)if it did give the written notice referred to in (a) above, whether it did so 3 days before any JobKeeper location change enabling direction was given: FW Act, s 789GM(1)(b)(i);
(c)if one or both of the requirements in s 789GM(1)(a) or (b)(i) of the FW Act have not been met, whether there is a JobKeeper location change enabling direction that applies to Ms Evans: FW Act, s 789GM(1); and
(d)if there is no JobKeeper location change enabling direction that applies to Ms Evans, whether there is some other direction that constitutes a valid direction for the purposes of the Employment Contract or the JobKeeper scheme.
The matters referred to immediately above will require further submissions from the parties before the Court can make final orders in this matter. Otherwise, the Court finds that the direction to Ms Evans to work at the DFO Perth Airport store was reasonable.
CONCLUSION
Due to the reservations that the Court has expressed in relation to matters arising from s 789GM of the FW Act, the Court will order that further submissions in relation thereto be filed.
I certify that the preceding eighty-four (84) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 3 June 2022
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