Evans v Oxford Shop Pty Ltd (No 2)

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Evans v Oxford Shop Pty Ltd (No 2) [2023] FedCFamC2G 663

File number: PEG 243 of 2020
Judgment of: JUDGE LUCEV
Date of judgment: 27 July 2023
Catchwords:

INDUSTRIAL LAW – when alleged requirement for consultation first raised by applicant – whether direction given was or was required to be a JobKeeper enabling direction – JobKeeper location change enabling direction –whether written notice given of intention to give a JobKeeper location change enabling direction – if written notice was given whether it was given three days before any JobKeeper location change enabling direction was given – whether if one or both of the requirements concerning the giving or timing of notice have not been met – whether there is a JobKeeper location change enabling direction

PRACTICE AND PROCEDURE – whether to re-open evidentiary hearing – whether proposed evidence relevant or of probative value – whether explanation for failure to call evidence – whether procedurally fair to re-open evidentiary hearing – whether prejudice to respondent

WORDS AND PHRASES – “period” – “during a period” – “writing” – “consultation”   
Legislation:

Acts Interpretation Act 1901 (Cth) s 2B

Fair Work Act 2009 (Cth) Part 6-4C, ss 548, 570, 789GB, 789GC, 789GDC, 789GE, 789GF, 789GK, 789GM, 789GN

Federal Circuit Court Rules 2001 (Cth) r 45.13

Matrimonial Causes Act 1875 (Qld) s 7

Cases cited:

Ample Source International Limited (BVICN 1575638) v Bonython Metals Group Pty Limited ACN 141 257 294 & Ors (No. 6) [2011] FCA 1484; (2011) 285 ALR 488

Australian Fisheries Management Authority v PW Adams Pty Ltd (1995) 61 FCR 314; (1995) 22 AAR 261; (1995) 134 ALR 51; (1995) 39 ALD 481

Australian Securities and Investments Commission v Rich [2006] NSWSC 826; (2006) 235 ALR 587

Autodesk Inc v Dyson (No. 2) (1993) 176 CLR 300; (1993) 67 ALJR 270; (1993) 111 ALR 385; (1993) 25 IPR 33

Bagus v Minister for Immigration, Local Government and Ethnic Affairs (1994) 50 FCR 396; (1994) 33 ALD 601

Brown v Walters [1931] HCA 45; (1931) 46 CLR 290; (1931) 38 ALR 103; (1931) 5 ALJ 278

Cassidy & Partners Pty Ltd v Scone Shire Council (1995) 7 BPR 14,331

Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2016] FCA 1009; (2016) 262 IR 176

Cunliffe v Goodman [1950] 2 KB 237; [1950] 1 All ER 720; (1950) Sol Jo 179; (1950) 155 EG 202; (1950) 66 TLR 109

Eugene Cho Pty Ltd v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 2020; (2021) 361 FLR 340

Evans v Oxford Shop Pty Ltd [2020] FCCA 2730

Evans v Oxford Shop Pty Ltd [2022] FedCFamC2G 438

Gardiner v Motor Vehicle Insurance Trust [1955] HCA 57; (1955) 95 CLR 120; (1955) 29 ALJ 689

Han Jian v NHP Electrical Product Pty Ltd [2004] AIRC 1227

Leeder v The Mayor, Etc, of the Town…

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Details
Case
[2023] FedCFamC2G 663
Decision Date

CaseChat Overview and Summary

In the case of Evans v Oxford Shop Pty Ltd (No 2), Ms Tara Anne Evans, the applicant, sought an order for pay in lieu of notice of termination and redundancy pay from Oxford Shop Pty Ltd, the respondent, a fashion retail outlet. This application followed an earlier judgment in Evans v Oxford Shop Pty Ltd [2022] FedCFamC2G 438, where the Court made several findings regarding Ms Evans’ employment contract and her role as Store Manager. The key issue in this case was whether the direction to work at the DFO Perth Airport Store constituted a valid direction under the Employment Contract and the Fair Work Act 2009 (Cth) (FW Act).

The Court considered the evidence and submissions from both parties, focusing on the interpretation of the Employment Contract and the requirements of the FW Act. Ms Evans argued that the direction to work at the DFO Perth Airport Store was unreasonable due to her caring responsibilities for her mother-in-law. However, the Court found that the June 2022 Orders did not invite the parties to file further evidence but to file further written submissions limited to the application of s 789GM of the FW Act. The Court noted that the threshold for reopening a case and allowing further evidence is lower before judgment than after, and the primary consideration is the embarrassment or prejudice to the other side.

The Court concluded that the direction to work at the DFO Perth Airport Store was a lawful and reasonable direction under the Employment Contract, as it was consistent with the term "As Directed." The Court also found that the direction satisfied the requirements of a JobKeeper enabling direction in s 789GM of the FW Act, as the requisite written notice was provided to Ms Evans and the consultation requirements were met. Furthermore, the Court held that the purpose of JobKeeper was to provide additional flexibilities for employers, not to restrict existing flexibilities.

In light of the findings, the Court denied the application for further evidence and found that the direction to work at the DFO Perth Airport Store was a valid direction under the Employment Contract and the FW Act. The Court's decision underscores the importance of interpreting employment contracts and legislative provisions in the context of the specific circumstances of each case.

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

The only direction that constituted a valid direction for the purposes of the Employment Contract in relation to location change was the direction to work at the DFO Perth Airport Store: Evans (No 1) at [43] and [78].Issue 4A - Further evidence Issue 4A concerns the attempt by Ms Evans, in her submissions, to re-agitate the case with respect to her caring responsibilities for her mother-in-law. In addition to Ms Evans submissions on this issue summarised at [3(d)-(e)] above, there was appended to the submissions:(a)a discharge summary (“Discharge Summary”) for a person (whom the Court will refer to as “Mrs W”) said in the submissions to be Ms Evans mother-in-law;(b)a “Your Carer Payment” summary from Centrelink addressed to Ms Evans in relation to payment for the period 22 September 2020 to 5 October 2020 due on 7 October 2020 (“October 2020 Carer Payment Summary”); and(c)a “Your Centrelink Statement for Carer Payment” for the period 12 March 2022 to 3 June 2022 (“2022 Carer Payment Statement”). The first, and obvious, point to be made is that the June 2022 Orders did not invite the parties to file further evidence, but to file further written submissions “in relation to the application of” and “limited to the application” of s 789GM of the FW Act “to this matter”. There was no intention on the Court’s part that there be a re-opening of the evidentiary case for either party. In determining whether or not to re-open a case and allow further evidence to be led the Court has regard to certain principles which are set out in the Federal Court judgment in Ample Source International Limited (BVICN 1575638) v Bonython Metals Group Pty Limited ACN 141 257 294 & Ors (No. 6) [2011] FCA 1484; (2011) 285 ALR 488 at [355] per Robertson J (“Ample Source”). Part of that test is the relevance of the proposed material: Ample Source at [355] per Robertson J, where the Federal Court said as follows:Leave to reopen needs to be considered by reference to the Full Court decision in Londish v Gulf Pacific Pty Ltd (1993) 45 FCR 128 at 138-139. The threshold is lower than that which applies after the entry of judgment. If there was no deliberate decision not to call material, the primary consideration is embarrassment or prejudice to the other side: Smith v New South Wales Bar Association (No 2) (1992) 176 CLR 256 at 266-267. The essential principle is that the Court should do justice as between the parties. Within that concept, of course, must be the cogency or relevance of the material sought to be adduced on the application to reopen. There is reference in Londish to applications to amend and therefore the approach in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 must now inform the principle. The Court further observes that:(a)the decision to re-open a case and allow further evidence is a discretionary one: Australian Securities and Investments Commission v Rich [2006] NSWSC 826; (2006) 235 ALR 587 at [18] per Austin J (“Rich”);(b)in Rich at [18] per Austin J the New South Wales Supreme Court said the following factors are relevant to the exercise of a court’s discretion to re-open:(i)the degree of relevance and the probative value of the further evidence sought to be adduced, and its potential to involve an undue waste of time; (ii)the nature of the proceeding; (iii)the extent to which the party seeking to re-open embarked upon calling the further evidence during the hearing; (iv)whether calling the further evidence ought reasonably to have been foreseen; (v)what explanation is offered by the party seeking to re-open for not having called the further evidence during the hearing; (vi)the consideration of fairness that a respondent is entitled to know all of the evidence it has to meet in taking forensic decisions as to cross-examination and the nature and extent of the evidence he will himself adduce on the matters in question; and (vii)the prejudice to a respondent in terms of delay in the completion of the proceeding (and the consequential costs);(c)regard must also be had to the public interest in the finality of litigation: Autodesk Inc v Dyson (No. 2) (1993) 176 CLR 300; (1993) 67 ALJR 270; (1993) 111 ALR 385; (1993) 25 IPR 33; CLR at 302-303 per Mason CJ.

Decision

Reasons for decision

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.EARLIER JUDGMENT In Evans v Oxford Shop Pty Ltd [2022] FedCFamC2G 438 (“Evans (No 1)”) this Court:(a)made findings as follows:(i)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: Evans (No 1) at [29];(ii)there is 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: Evans (No 1) at [31];(iii)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”: Evans (No 1) at [40];(iv)there is no ambiguity in the words “As Directed”, and it has the simple meaning of as instructed or as ordered: Evans (No 1) at [41];(v)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: Evans (No 1) at [42]. The factors set out in Evans (No 1) at [42], tell against this submission;(vi)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: Evans (No 1) at [43];(vii)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 was 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; and(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: Evans (No 1) at [44]; (viii)there was no attempt by Oxford Shop to avoid making redundancy payment to Ms Evans, and that at the time her employment terminated she was a required employee in the position of Store Manager at the DFO Perth Airport Store: Evans (No 1) at [48];(ix)Ms Evans 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 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: Evans (No 1) at [55];(x)in relation to the allegations that Oxford Shop was using the JobKeeper scheme to:(A)pay for its entire staff payroll; and(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: Evans (No 1) at [57];(xi)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: Evans (No 1) at [59];(xii)the Shop and Warehouse (Wholesale and Retail Establishments) State Award 1977 (“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: Evans (No 1) at [67];(xiii)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: Evans (No 1) at [74];(xiv)the reasonableness of the travel and travel time, and whether Ms Evans was 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-à-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: Evans (No 1) at [77];(xv)the direction to work at the Perth DFO 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: Evans (No 1) at [78];(xvi)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: Evans (No 1) at [79];(xvii)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 carer’s responsibilities being undertaken, or to be undertaken, by the employee. 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, and 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: Evans (No 1) at [80];(xviii)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 of 7 July 2021 hearing (“July 2021 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), 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: 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 directions for the purposes of the Employment Contract or the JobKeeper scheme: Evans (No 1) at [82].(b)made orders as follows: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 10.00am 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.(“June 2022 Orders”)SUBMISSIONSMs Evans

Ratio Decidendi

Legal Principle Established

Oxford Shop’s submissions were as follows:(a)JobKeeper enabling directions were never intended to prevent employers exercising existing rights to give lawful and reasonable directions consistent with an employee’s contract of employment. Further, a JobKeeper enabling direction was not required as Ms Evans did not have a “normal place of work”, as it was referred to under the since repealed s 789GF of the FW Act as she was not working at the time she was directed to the DFO Perth Airport Store. This is also consistent with Ms Evans’ Employment Contract which did not prescribe a normal place of work, rather her “Primary Location” of employment was “As Directed”;(b)in the alternative, that although it was not described as a JobKeeper enabling direction, the direction to work at the DFO Perth Airport Store would satisfy the requirements of a JobKeeper enabling direction in s 789GM of the FW Act, as the requisite written notice was provided to Ms Evans and the consultation requirements were met;(c)that the purpose of JobKeeper was intended to provide additional flexibilities for employers to keep employees employed, not to restrict existing flexibilities;(d)nothing in the FW Act suggests that JobKeeper enabling directions in relation to work location were intended to override lawful and reasonable directions authorised by the contract of employment;(e)section 789GF(1)(a) of the FW Act authorises an employer to direct an employee to change their work location subject to the requirements of (b) to (f) of that subsection being satisfied even if a “designated employment provision” would not allow it;(f)section 789GF of the FW Act does not operate to prevent an employer otherwise directing their employees to change the location of work consistent with their contract of employment, provided that the employer is not relying upon s 789GF of the FW Act to authorise the direction;(g)section 789GF of the FW Act set out the requirements for an employee who qualified for the JobKeeper scheme (in relation to a particular employee) to be able to direct that employee during a period to perform duties at a place that was different from that employee’s normal place of work; (h)Ms Evans’ evidence was that on 15 April 2020 the Wesley Quarter Store, where she had previously been directed to work, closed permanently due to a decline in trade as a result of COVID-19 restrictions and after its closure Oxford Shop did not retrench any employees, including Ms Evans, who remained employed with Oxford Shop and application was subsequently made for JobKeeper payments;(i)as such, that Ms Evans was not working at the time that she was directed to work at the DFO Perth Airport Store, and therefore she did not have a “normal place of work” and as such, no JobKeeper enabling direction was required;(j)no “normal place of work” is prescribed in Ms Evans’ Employment Contract with “Primary Location” being “As Directed”;(k)it had consulted Ms Evans, consistent with s 789GM(1)(c) of the FW Act, by way of SMS to her on 8 July 2020 by Mr Maddox and that the text messages between Mr Maddox and Ms Evans, and the emails between Mr Togno and Ms Evans, met the requirements under s 789GM(1)(c) of the FW Act in relation to consultation;(l)during cross examination at hearing Ms Evans had conceded that it was a direction to work at the DFO Perth Airport Store;(m)the written notice, being the text messages exchanged between Ms Evans and Mr Maddox, occurred five days prior to the written direction being provided, thereby complying with s 789GM(b)(i) of the FW Act and that the direction was in the form of the email dated 13 July 2020, stating “Please see below your contract from 2015 which shows your Primary location to be “As directed” all staff in WA are now required to be employees at our DFO store”. Daniel will have you on the roster from this week”;(n)due to the closure of other store locations in Western Australia, a direction for Ms Evans to work at the DFO Perth Airport Store, Oxford Shop’s only remaining WA store, was necessary in order for her to have continued employment;(o)the JobKeeper legislation did not act to prevent Oxford Shop giving Ms Evans a lawful and reasonable direction to attend for work;(p)that in relation to Evans (No 1):(i)as to [82(a)], written notice was provided to Ms Evans;(ii)as to [82(b)], five days written notice were provided to Ms Evans;(iii)as to [82(c)], that although it was not described as a JobKeeper enabling direction, the direction to work at the DFO Perth Airport Store would satisfy both the requirements of a JobKeeper enabling direction in s 789GM(1)(a) and (b)(i) of the FW Act; and(iv)as to [82(d)], that there was a valid direction for the purposes of the Employment Contract as Ms Evans’ “Primary Location” of employment is “As Directed” and the direction was held in Evans (No 1) to be lawful and reasonable; and(q)Ms Evans now appears to seek to provide evidence in relation to carer’s responsibilities and in relation thereto Oxford Shop:(i)objects to such evidence now being tendered; and(ii)submits that:(A)the evidence was not given at hearing: Evans (No 1) at [80];(B)carer’s responsibilities was never raised by Ms Evans as a reason not to work at the DFO Perth Airport Store;(C)as the matter has been determined, no regard should be had to Ms Evans’ new material; and (D)the June 2022 Orders only allowed for the filing of submissions not evidence.CONSIDERATIONLegislative provisions