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

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: [2022] FedCFamC2G 438
Decision Date

CaseChat Overview and Summary

Ms Evans brought a claim against Oxford Shop in the Federal Circuit Court, seeking payment in lieu of notice of termination and redundancy pay under the Fair Work Act 2009 (Cth). Ms Evans claimed that Oxford Shop was not entitled to transfer her from one store to another, and that a refusal to transfer amounted to a repudiation of the contract of employment. Oxford Shop argued that the Employment Contract allowed for the transfer of Ms Evans to different locations as directed by Oxford Shop. The primary issue for determination was whether Oxford Shop was entitled to transfer Ms Evans and, if not, whether Ms Evans was entitled to payment in lieu of notice and redundancy pay.
The Court found that the phrase “As Directed” in the Employment Contract meant “as instructed” or “as ordered”, and that there was no ambiguity in the contract. The Court also found that the Employment Contract did not prescribe a specific location for Ms Evans to work, and that Oxford Shop was entitled to direct Ms Evans to work at a different location. The Court further found that the proposed changes to Ms Evans’ role did not amount to a repudiation of the Employment Contract by Oxford Shop, as the changes were within the scope of the contract. The Court held that Ms Evans’ employment was not terminated by Oxford Shop, and that she was not entitled to payment in lieu of notice and redundancy pay. The Court ordered further submissions from the parties before making final orders in the matter.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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 lieuNotice 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:

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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 ARISINGWhether “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

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