Evans v Oxford Shop Pty Ltd (No 2)
[2023] FedCFamC2G 663
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 of Ballarat East [1908] VLR 214; (1908) 14 ALR 124; (1908) 29 ALT 192
Lin v Minister for Immigration and Citizenship and Another [2009] FCA 494; (2009) 176 FCR 371
McJannet v Special Broadcasting Services Corporation t/as SBS Corporation [2016] FCCA 2937; (2016) 68 AILR 102-730
QR Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2010] FCAFC 150; (2010) 204 IR 142
TVW Enterprises Ltd v Duffy and Others (No 3) (1985) 8 FCR 93; (1985) 62 ALR 63
Other materials: Coronavirus Economic Response Package (Payments and Benefits Bill) 2020 (Cth) and the Coronavirus Economic Response Package Omnibus (Measures No. 2) Bill 2020 (Cth) - Explanatory Memorandum
Shop and Warehouse (Wholesale and Retail Establishments) State Award 1977
Division: Division 2 General Federal Law Number of paragraphs: 92 Date of last submission: 14 June 2022 Date of hearing: 14 June 2022 Place: Perth Applicant: In person Counsel for the Respondent: Mr T McDonald via CISCO Webex Solicitor for the Respondent: McCabe Curwood Pty Ltd 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:
27 JULY 2023
THE COURT ORDERS THAT:
1.The originating application filed 11 August 2020 be dismissed.
2.The order in order 1 for dismissal of the originating application is to be stayed until 4.00pm on 17 August 2023.
3.The applicant have leave to file an application in a proceeding seeking a new hearing or the admission of new evidence, and any affidavits in support thereof, by 4.00pm on 17 August 2023.
4.If the applicant files an application in a proceeding by 4.00pm on 17 August 2023, the order in order 1 for dismissal of the originating application is to be stayed until further order of the Court.
5.If the applicant files an application in a proceeding by 4.00pm on 17 August 2023, the matter be adjourned to a directions hearing at 11.00am on 25 August 2023.
6.Costs, if any, be 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.
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”)
SUBMISSIONS
Ms Evans
Ms Evans made submissions as follows:
(a)at the 7 July 2021 hearing she asked Mr Daniel Craig Maddox (“Mr Maddox”) if he gave her written notice of the intention that he was going to give a JobKeeper directive and that Mr Maddox responded “No” and that he did not know what Ms Evans was talking about;
(b)the Court then stopped her line of questioning for reasons of which she is “unaware”;
(c)the Court prevented her from asking questions in relation to s 789GM of the FW Act where her next question for Mr Maddox would have been “Did [you] give me consultation prior to giving the directive?” and that had the said consultation taken place it would have identified the caring responsibilities Ms Evans had;
(d)Ms Evans cares for her mother-in-law who had breast cancer and onset of dementia;
(e)that she would have finished work at the DFO Perth Airport Store at 6pm in the evening and that it would have been approximately 8pm when she would have arrived home, that she would have prepared a meal for her mother in-law and delivered it to her at 9:30 pm at night which “is too late for a 82 year old woman to have her evening meal.” Ms Evans would also need to check that her mother-in-law had taken her medication and would have arrived at her home “after normal sleep time” eventually leading to “sleep deprivation”;
(f)when Oxford Shop “repudiated” Ms Evans’ Employment Contract she became a full time carer for her mother-in-law and still is today, and is also employed as a Store Manager part time;
(g)that under s 789GM (1)(a) of the FW Act Oxford Shop did not give Ms Evans written notice of their intention to give a JobKeeper enabling direction;
(h)that under s 789GM(1)(c) of the FW Act Oxford Shop did not consult with Ms Evans prior to giving Ms Evans a JobKeeper enabling direction and that the reason consultation is required prior to a direction being given is to identify if the direction is going to be reasonable. How can the direction under s 789GK of the FW Act be reasonable if the consultation under s 789GM never took place?;
(i)under s 789GM(4) of the FW Act Oxford Shop did not keep a written copy of consultation;
(j)because Oxford Shop failed to ensure that the above occurred according to s 789GM(1) of the FW Act the JobKeeper enabling direction does not apply to Ms Evans;
(k)that in relation to Evans (No 1):
(i)as to [19(g)(i)], the JobKeeper enabling direction required a return to work at reduced hours of 30 hours per week. The contract requires 38 hours per week to be a valid contractual direction;
(ii)as to [73(c)], Oxford Shop has stated this was a JobKeeper enabling direction but that Ms Evans was paid JobKeeper at the time and this was not a direction given under the Employment Contract; and
(iii)at [82(d)], if the JobKeeper enabling direction does not apply to the employee, is the direction valid under the employment contract?
Oxford Shop
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.
CONSIDERATION
Legislative provisions
The relevant provisions of the FW Act have since been repealed, but at the material times included the definitions of:
(a)“designated employment provision” in s 789GC which means:
(a)a provision of this Act (other than a provision of this Part or a provision mentioned in section 789GZ); or
(b) a provision of:
(i) a fair work instrument; or
(ii) a contract of employment; or
(iii)a transitional instrument (within the meaning of item 2 of Schedule 3 to the Transitional Act).
(b)“jobkeeper enabling direction” in s 789GC which means:
a direction authorised by section 789GDC, 789GE or 789GF
(hereafter” JobKeeper Enabling Direction”)
Of the provisions referred to in the definition of “jobkeeper enabling direction” only s 789GF of the FW Act is relevant for present purposes, and it provides as follows:
(1) If:
(a) after the commencement of this section, an employer of an employee directed the employee to perform duties during a period (the relevant period) at a place that is different from the employee’s normal place of work, including the employee’s home; and
(b) when the direction was given, the employer qualified for the jobkeeper scheme; and
(c) the place is suitable for the employee’s duties; and
(d)if the place is not the employee’s home - the place does not require the employee to travel a distance that is unreasonable in all the circumstances, including the circumstances surrounding the COVID-19 pandemic; and
(e) the performance of the employee’s duties at the place is:
(i)safe, having regard to (without limitation) the nature and spread of COVID-19; and
(ii)reasonably within the scope of the employer’s business operations; and
(f)the employer becomes entitled to one or more jobkeeper payments for the employee:
(i) for a period that consists of or includes the relevant period; or
(ii)for periods that, when considered together, consist of or include the relevant period;
the direction is authorised by this section.
(2) This section has effect despite a designated employment provision.
Section 789GM of the FW Act is relevant and it provides that:
(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.
Section 789GN(1) of the FW Act may also be relevant, and it provides that:
(1) A jobkeeper enabling direction must be in writing.
Issues
In Evans (No 1) at [82] the Court observed that the following issues need to be addressed in relation to whether there was compliance with s 789GM of the FW Act:
(a)whether Oxford Shop gave Ms Evans written notice of its intention to give a JobKeeper location change enabling direction: FW Act, s 789GM(1)(a) (“Issue 1”);
(b)if Oxford Shop did give the written notice referred to in (a) above, whether it did so three days before any JobKeeper location change enabling direction was given: FW Act, s 789GM(1)(b)(i) (“Issue 2”);
(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) (“Issue 3”); 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 (“Issue 4”).
In the parties submissions a number of other issues were raised, including:
(a)by Ms Evans:
(i)in relation to Evans (No 1) at [81], that s 789GM of the FW Act was not raised by her for the first time at the conclusion of the hearing on 7 July 2021; and
(ii)that Oxford Shop had not consulted with her in relation to the giving of a JobKeeper Enabling Direction as required by s 789GM(1)(c) of the FW Act, and had not kept a written record of that consultation as required by s 789GM(4) of the FW Act; and
(iii)seeking to re-agitate the case with respect to her caring responsibilities for her mother-in-law; and
(b)by Oxford Shop as to whether the directions given to Ms Evans were, or were required to be, JobKeeper Enabling Directions, and whether therefore Oxford Shop was required to comply with s 789GM(1) of the FW Act in relation to any direction to Ms Evans to work at the DFO Perth Airport Store.
The Court has dealt with the issues in [10(a)(i) and (b)] above as preliminary issues, and the issues in [10(a)(ii) and (iii)] as further issues (Issues 3A and 4A) arising from the 7 July 2021 hearing.
Within the last month Ms Evans has raised further issues with the Court. These are dealt with at [88]-[90] below.
Consideration – preliminary issue – whether s 789GM of the FW Act was raised by Ms Evans for the first time at the conclusion of the hearing on 7 July 2021
Ms Evans took issue with the Court’s characterisation of the conduct of the proceedings on 7 July 2021, and in particular submitted that, in relation to Evans (No 1) at [81], that it was not the first time she had raised s 789GM of the FW Act and the Court should refer to the transcript relating to Ms Evan’s questioning of Mr Maddox, wherein Ms Evans says:
(a)she asked Mr Maddox if he gave her written notice of the intention that he was going to give a JobKeeper directive and that Mr Maddox responded “No” and that he did not know what Ms Evans was talking about;
(b)the Court then stopped her line of questioning for reasons of which she is “unaware”; and
(c)the Court prevented her from asking questions in relation to s 789GM of the FW Act where her next question for Mr Maddox would have been “Did you give me consultation prior to giving the directive?” and that had the said consultation taken place it would have identified Ms Evans caring responsibilities.
In order to deal with Ms Evans submissions it is necessary to set out in full that part of the 7 July 2021 Transcript where Ms Evans conducted her examination in chief of Mr Maddox in relation to the alleged JobKeeper Enabling Direction and what she says would have been her intention to raise the issue of consultation under s 789GM of the FW Act as appears at Transcript p 24 line 12 to p 26 line 17, which is as follows:
[MS EVANS] Thank you. Thanks. I would just like to refer to - I have already introduced into evidence - I will refer to it as T86, a text message sent by yourself to me. May I approach the witness to give this to the witness? Would that be acceptable, your Honour?
HIS HONOUR: Well, does he have a - perhaps if you give it to my associate and he can give it to him.
MS EVANS: Thank you.
HIS HONOUR: At the same time, Ms Evans, can you please return the Togno affidavit that was given to you in the witness box?
MS EVANS: Yes. Certainly, sorry. Yes. Sorry, that’s it. Thank you. Thanks very much. Thank you. Okay. Thank you.
Mr Maddox, would you mind reading the text message, please, if you don’t mind?---From the beginning?
From the beginning, just the part that you text to me, if you would be so kind.
HIS HONOUR: When you say - you don’t want him to read it out loud?
MS EVANS: If that’s permissible, I would. Is that all right?
HIS HONOUR: Why would we need to do that? He just read it and you can ask him. The purpose - you can ask him a question of his evidence.
MS EVANS: Yes. Certainly. No problem.
Did you write this text message?---That is correct, yes.
Thank you. Okay. So when you sent me this text message with this JobKeeper enabling direction to return to work on 8 July, if I returned would there have been two store managers - there would have been two store managers at the DFO store; is that correct?
MR MCDONALD: Objection to the question. It refers to the JobKeeper enabling direction. I don’t know - that does - that’s not apparent on the face of T86.
HIS HONOUR: I think that’s right, Ms Evans. You might have to approach it differently.
MS EVANS: Thank you. Okay. If - when you sent me this text message on 8 July, had I have returned - had I have taken the position at the DFO store, there would have two store manages; would that have been correct?---I am the cluster manager and you would have been the store manager. That is correct.
Thank you. Mr Maddox, you stated in this message that both yourself and Nicole were working 30 hours a week. Would you mind telling me why you were only working 30 hours a week when your contract is for 38 hours, please?---Yes. So due to the pandemic, when we returned every retail store struck, like, the trading hours were different due to the fact that the pandemic happened, the trading hours were shortened throughout the entire DFO centre and most retail stores as well. So, in total, the working amount was 30 hours a week.
Thank you. Did you receive written directions regarding this reduction in hours?---Written, yes, and communication through my boss, James, yes.
Okay. Right. Well, could you tell me, please, did you ever receive written advice or consultation about a JobKeeper enabling direction from Oxford at any time?---Like, the JobKeeper - - -
MR McDONALD: Objection. The questions about - about Mr Maddox’s employment don’t appear to be relevant.
MS EVANS: I ask your Honour to establish Mr Maddox’s - the conditions on which Mr Maddox’s hours were reduced.
HIS HONOUR: I think I will allow it in the circumstances. Yes, Ms Evans. Can you ask the question again?
MS EVANS: Yes. So were you at any time - did you ever receive written instructions from Oxford and were you consulted with regarding a JobKeeper enabling direction? Did they ever stipulate to you in writing that your reduction in hours was in fact a JobKeeper enabling direction?---From memory, from what I remember I was in communication with my boss. We discussed that it was 30 hours a week due to the fact that, like, our trading hours were like 10 to four. We had to play it by ear but JobKeeper had already been signed. We had all signed the JobKeeper document to sign off saying that, “Yep. We’re still with Oxford. We’re just getting paid”. I didn’t discuss anything further.
Do you recall at any time - did you give me a three days written notice of your intention to give a JobKeeper enabling standdown direction? Do you recall if that ever took place?---A three day - sorry. Say that again for me.
Did you give me three days written notice of your intention to give a JobKeeper enabling standdown direction?---When it came to the JobKeeper application we gave it to you, we forward that on to you straight away, just like I did with everyone and then it was in your court to sign it and sent it off to head office. I really was just the - the messenger - the delivery boy.
Do you recall at any time, any consultation that you may have had with me about the directive? Was there any written - written copy of a - any consultation that may have taken place as regarding JobKeeper enabling directions?---So because we were in - at the time when we first had the pandemic happen, JobKeeper did not exist. We were all told to do Jobseeker. Then we were in communication - I communicated with you all individually in regards that JobKeeper exists, there will be a document getting sent out and that was when I was in communication with you. Yes.
Ms Evans’ re-examination did not touch upon the issues of the alleged JobKeeper Enabling Direction and what she says would have been her intention to raise the issue of consultation under s 789GM of the FW Act.
Ms Evans’ submissions are not an accurate account of that part of the proceedings where she was questioning in examination-in-chief Mr Maddox, the Cluster Manager for Oxford Shop, concerning an alleged JobKeeper Enabling Direction.
First, when Ms Evans asked Mr Maddox if he gave her written notice of the intention that he was going to give a “JobKeeper enabling standdown direction” Mr Maddox did not respond “No”, and nor did he say he did not know what Ms Evans was talking about: see July 2021 Transcript, p 26 lines 1-9.
Second, the only occasion on which the Court “stopped her line of questioning” was when, in response to an objection from Oxford Shop, it upheld the objection and suggested that Ms Evans might approach the matter differently: July 2021 Transcript, p 25, lines 1-5. The objection was to the characterisation, in the question asked by Ms Evans, of an 8 July 2020 SMS Message from Mr Maddox as a “JobKeeper enabling direction”. After the objection was upheld, Ms Evans immediately asked essentially the same question omitting the “JobKeeper enabling direction” characterisation: July 2021 Transcript, p 25, lines 7-10. Ms Evans then proceeded, without any discernible break, to ask Mr Maddox a series of questions about:
(a)his employment, in the course of which an objection by Oxford Shop was over-ruled by the Court: July 2021Transcript, p 25 lines 12-44;
(b)whether Mr Maddox had given her written notice of intention that he was going to give a “JobKeeper enabling standdown direction”, and a question about consultation in relation thereto: July 2021 Transcript, p 26 lines 1-17;
(c)Mr Maddox’s duties as Cluster Manager and whether they were also Store Manager’s duties: July 2021 Transcript, p 26 lines 19-31; and
(d)the Store Manager’s role at the DFO, and whether they included management duties: July 2021 Transcript, p 26 lines 33-47 and p 27 lines 1-32,
at which point the examination-in-chief ended.
It is evident from an examination of the July 2021 Transcript that the Court did not stop any line of questioning, and that when an objection to one question was upheld, Ms Evans continued with the same line of questioning, and indeed asking essentially the same question save for the short phrase about the “JobKeeper Enabling Direction” which had been successfully objected to.
Third, because Ms Evans was not “prevented … from asking questions” in relation to s 789GM of the FW Act, it does not follow that “her next question” was to be about consultation. In any event, it is apparent from the Transcript that Ms Evans was not precluded from asking any questions, and moreover, that she did ask Mr Maddox about “consultation that you may have had with me about the directive”: July 2021 Transcript, p 26, lines 11-12. Further, the submission that had she asked “her next question” about consultation she would then have somehow identified “the caring responsibilities” she now alleges is belied by several facts, including that:
(a)when Ms Evans did ask Mr Maddox about consultation she did not then ask about or otherwise raise the issue of caring responsibilities;
(b)Ms Evans was not prevented from asking any question of Mr Maddox about caring responsibilities; and
(c)Ms Evans did not otherwise seek to ask about or otherwise raise with Mr Maddox the issue of caring responsibilities.
Ms Evans further submits that Oxford Shop was aware of the prospect that she was going to ask questions relating to s 789GM of the FW Act as it was raised in a Notice to Produce served on Oxford Shop on 28 June 2021 and which was relevantly in the following terms:
The applicant requires you to produce the following documents or things for the hearing on the 7th July 2021:
1.The written copy of Oxford Shop Jobkeeper enabling stand down directions including a copy of the written consultation that is required with the direction for both Tara Evans and Daniel Maddox’s for the time period of 9th April 2020 to 29th March 2021.
Ms Evans submits that the reason she was asking Mr Maddox questions relating to s 789GM of the FW Act was because he was the writer of the alleged JobKeeper Enabling Direction dated 8 July 2020 referred to in Evans (No 1) at [19(g)(i)] (but there referred to by the Court as the “8 July 2020 SMS Messages”).
It does not appear to be in dispute that the Notice to Produce was served on Oxford Shop and, as is usual, not filed with the Court. And thus whilst Oxford Shop may have been aware of the documents the subject of the Notice to Produce, and may have been entitled to speculate on the purpose for which the documents were sought to be produced, the Notice to Produce did not put the Court on notice of the documents sought to be produced, much less their purpose. At a directions hearing specially convened on 5 July 2021 (“Directions Hearing”) (two days before the hearing on 7 July 2021) to deal with outstanding matters, the Court was told by Ms Evans that item one on the Notice to Produce was a “[w]ritten copy of the Oxford [S]hop JobKeeper enabling stand down directions” for Ms Evans and Mr Maddox, but that she had had “some correspondence from the respondent, so that seems to satisfy that direction at this time”, and by Oxford Shop’s lawyer that item one on the Notice to Produce had been “resolved”: Transcript of the Directions Hearing (“Directions Hearing Transcript”), p 4-5. The Court notes that what was referred to was a standown JobKeeper Enabling Direction (FW Act, a 789GDC) not a location change JobKeeper Enabling Direction (FW Act, s 789GF) There was no mention at all of s 789GM of the FW Act, or any requirement to consult in relation thereto, at the Directions Hearing. Ms Evans did however raise the issue of an obligation to consult with respect to redundancy, but as being one arising under the State Award: Directions Hearing Transcript, p 5. Ms Evans did not, at the Directions Hearing, raise the issue of consultation as one arising under s 789GM (or any other provision) of the FW Act. There was therefore nothing raised at the Directions Hearing on 5 July 2021 which would have put, or would have been likely to put, the Court on notice of any issue arising with respect to s 789GM of the FW Act, whether by reason of the Notice to Produce, or otherwise.
The failure by Ms Evans to raise s 789GM of the FW Act and Oxford Shop’s alleged failure to comply therewith prior to the “very conclusion of the hearing”: Evans (No 1) at [81] is also made out by an examination of the litigation history of the matter, which shows that:
(a)the originating application filed 11 August 2020 seeks orders on the grounds set out in the claim, and does not mention s 789GM of the FW Act or any alleged failure to consult;
(b)the “Form 5 – Small Claim under the Fair Work Act 2009” (“Claim Form”) filed with the originating application refers only to Ms Evans’ claims to be entitled under the National Employment Standards to a payment in lieu of notice of termination and redundancy payment: Claim Form, Part G, Item 25 and Parts H and I;
(c)unsurprisingly, given its factual content, Ms Evans’ Affidavit sworn 7 August 2020 does not mention s 789GM of the FW Act and nor does it advert in any way to any issue concerning an alleged lack of consultation;
(d)section 548(5) of the FW Act and r 45.13(1) of the then Federal Circuit Court Rules 2001 (Cth) provide that a party to a small claim made under s 548 of the FW Act may only be represented by a lawyer by leave of the Court. There was a dispute as to whether leave ought to be granted for Oxford Shop to be represented by a lawyer in this matter: Ms Evans objected to leave being granted. Pursuant to orders made by the Court (then the Federal Circuit Court and differently constituted) on 1 September 2020 the parties filed submissions as to whether Oxford Shop ought to be granted leave to be represented by a lawyer (“Ms Evans’ Representation Submissions” and “Oxford Shop’s Representation Submissions” respectively), and the matter was determined on the papers. Oxford Shop’s Representation Submissions characterised the matter as one involving “a particular interpretation of the law around dismissal and redundancy”, and did not mention s 789GM of the FW Act and nor did they advert in any way to any issue concerning an alleged lack of consultation. Ms Evans’ Representation Submissions at [8] submitted that this was “a relatively straightforward case” and that the “technical issues” were:
(i)first, did the Employment Contract have a mobility clause; and
(ii)second, was the relocation reasonable,
and did not mention s 789GM of the FW Act and nor did they advert in any way to any issue concerning an alleged lack of consultation;
(e)the first mention of the provisions of the FW Act relevant to the JobKeeper legislation seemingly came in the judgment on the representation issue in Evans v Oxford Shop Pty Ltd [2020] FCCA 2730 at [26]-[27] per Judge Kendall where the Court, in granting leave for Oxford Shop to be represented by a lawyer, observed that:
While there has been no reference to any award or collective agreement in this matter, the Court notes that, in light of the fact that the respondent was obtaining JobKeeper payments, the provisions in Part 6-4C of the Act may have some effect. While these provisions might arguably be irrelevant, given that these are new legislative provisions which have not yet been the subject of judicial consideration in circumstances that arise here (namely, directions to attend work) any assistance from a lawyer would be beneficial and would greatly assist the Court.
Further, the applicant seems to suggest that the respondent was, arguably, using the JobKeeper scheme in an improper way. This is a serious accusation. Hence, given the accusation made, it would be most beneficial for a legal representative to assist the Court and to respond to those allegations if made in open court.
again with no specific mention of s 789GM of the FW Act, nor reference to any issue concerning an alleged lack of consultation;
(f)Ms Evans filed submissions for the 7 July 2021 hearing on 9 June 2021 (“Ms Evans’ June 2021 Submissions”) in which she:
(i)submitted, under the heading “Submissions for Federal Circuit Court of Australia”, that her claim was made under the National Employment Standards and the State Award relating to termination and redundancy;
(ii)set out under “History of Events” at [1]-[25] the alleged factual issues, primarily by reference to emails and SMS messages (as now summarised in Evans (No 1) at [19(g)-(l)]);
(iii)claimed that she was entitled to be notified of any “major changes”, to have those changes discussed with her, and to resolve any disputes concerning such changes pursuant to the dispute resolution provisions of the State Award,
but nowhere in Ms Evans’ June 2021 Submissions, or in the contemporaneous emails and messages referred to therein, was any reference made to s 789GM of the FW Act, or any consultation requirements arising therefrom;
(g)at the Directions Hearing on 5 July 2021, as set out above, there was no mention at all of s 789GM of the FW Act, or any requirement to consult in relation thereto, but Ms Evans did raise the issue of an obligation to consult with respect to redundancy, but as being one arising under the State Award.
It follows from what is set out at [14]-[24] above that the matters on which Ms Evans relies for her submission that she had raised s 789GM of the FW Act prior to the “very conclusion of the hearing”: Evans (No 1) at [81] on 7 July 2021 have not been made out.
Ultimately, however, Ms Evans’ failure to make out that submission has no real or significant effect upon the question of whether s 789GM of the FW Act has been complied with, and in particular for the purposes of Issue 1, whether Oxford Shop gave Ms Evans written notice of its intention to give a JobKeeper location change enabling direction: FW Act, s 789GM(1)(a).
Consideration – preliminary issue – whether directions given to Ms Evans were, or were required to be, JobKeeper Enabling Directions
Because of the submissions now made it is first necessary to consider whether the directions given to Ms Evans were, or were required to be, JobKeeper Enabling Directions, and whether therefore Oxford Shop was required to comply with s 789GM(1) of the FW Act in relation to any direction to Ms Evans to work at the DFO Perth Airport Store.
The termination of Ms Evans’ employment arose from the fact that she did not agree with, and did not comply with, a direction from Oxford Shop to work at the DFO Perth Airport Store. It is that termination which gives rise to the claim in these proceedings for payment:
(a)for redundancy; and
(b)in lieu of notice of termination.
The issues now raised relate to different issues to those considered in Evans (No 1). The relevant facts related to the location change direction and termination of employment are however the same, and it is convenient to quote them from the summary of Ms Evans’ evidence in Evans (No 1) at [19(c)-(l)] as follows:
(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.
It is also relevant to note that under cross-examination Ms Evans accepted that she was directed by Oxford Shop to work at the DFO Perth Airport Store: July 2021 Transcript, pp 11 and 17. There is no dispute that Ms Evans was a person in respect of whom Oxford Shop received JobKeeper payments.
The obligation to give written notice of the intention to give a JobKeeper Enabling Direction only arises in respect of a JobKeeper Enabling Direction: FW Act, s 789GM(1)(a). A JobKeeper Enabling Direction is a direction authorised by ss 789GDC (a JobKeeper Stand Down Enabling Direction), 789GE (a JobKeeper Duties of Work Enabling Direction) and 789GF (a JobKeeper Location of Work Enabling Direction).
It is necessary to bear in mind the basis for the claim as outlined in Ms Evans’ Affidavit at [19] where she said:
My work location was the Joondalup store and then the Wesley Quarter store in Perth City, both of which are now closed permanently. My employment contract does not have a mobility clause. The direction of moving to the DFO store (Perth Airport) was unreasonable. I had advised the Oxford Store on two previous occasions that transport to the DFO store was prohibitive yet the company still demanded I move there or resign. I therefore ask the court to give an order to pay in lieu of notice of termination and redundancy pay as per the National Employment Standards (NES) which is five weeks in lieu of notice and ten weeks redundancy pay.
Because what is in dispute in this case is the termination of Ms Evans employment allegedly arising from a direction to change work location giving rise to a claim for redundancy payment and payment in lieu of notice of termination the only relevant JobKeeper Enabling Direction is a JobKeeper Location of Work Enabling Direction under s 789GF of the FW Act (which is set out at [6] above).
What constitutes a JobKeeper Location of Work Enabling Direction is determined by s 789GF(1)(a) of the FW Act which speaks of a direction to:
(a)perform duties “during a period”; and
(b)to perform those duties, during that period, “at a place that is different from the employee’s normal place of work, including the employee’s home”.
What is meant by a “period” and the phrase “during a period” in s 789GF(1)(a) of the FW Act?
The word “during” is capable of two ordinary meanings: “throughout the continuance of” and “in the course of”: Bagus v Minister for Immigration, Local Government and Ethnic Affairs (1994) 50 FCR 396; (1994) 33 ALD 601; FCR at 402 per Whitlam J. In this case both meanings might apply to the duties to be performed by an employee, that is, they might be required throughout the continuance of the period or in the course of the period.
In Lin v Minister for Immigration and Citizenship and Another [2009] FCA 494; (2009) 176 FCR 371 at [62] per Foster J the Federal Court said that (emphasis in original):
The word period ordinarily connotes an interval of time, a length of time, a portion of time or a span of time.
In Cassidy & Partners Pty Ltd v Scone Shire Council (1995) 7 BPR 14,331 at 14,333 per Young J the New South Wales Supreme Court said that:
Normally one expects the word “period” to refer to a spatial interval of time which has a definite commencement and a definite end: see Lace v Chandler [1944] 1 All ER 305; United Repairing Co Ltd v Glover [1945] NZLR 160; Re Karounos (1989) 89 ALR 580.
In Brown v Walters [1931] HCA 45; (1931) 46 CLR 290; (1931) 38 ALR 103; (1931) 5 ALJ 278; CLR at 295 per Gavan Duffy CJ, Starke, Dixon, Evatt and McTiernan JJ the High Court held that the words “during that period” in s 7 of the Matrimonial Causes Act 1875 (Qld) meant the period between two events, namely the making of a decree nisi and the pronouncing of the decree as absolute.
The significance of using the word “during” in the phrase “during a period” is that it signifies that there is a start and an end of the period, that is, it indicates that in its ordinary meaning the period is of limited duration. In the Court’s view this is the ordinary meaning of the words “during that period” in s 789GF(1)(a) of the FW Act, and so the period referred to is one intended to be of a specific and limited duration.
That JobKeeper Enabling Directions were intended to be directions of limited duration is confirmed by the objects of Part 6-4C of the FW Act, the first of which is to “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” the COVID-19 pandemic and government initiatives to slow its transmission: FW Act, s 789GB(a) (emphasis added). That JobKeeper Enabling Directions were only intended to be temporary in effect is also confirmed by the Explanatory Memorandum to the Coronavirus Economic Response Package (Payments and Benefits Bill) 2020 (Cth) and the Coronavirus Economic Response Package Omnibus (Measures No. 2) Bill 2020 (Cth) at [1.43] where it was said that (emphasis added):
A direction under sections … 789GF… have the effect of temporarily modifying employment rights and obligations to the extent specified in the direction …
An examination of various communications between Ms Evans and Oxford Shop during July 2020 (the 8 July 2020 SMS Messages, 13 July 2020 Message and 28 July 2020 Letter) shows that not only was there was no intention on Oxford Shop’s part that any direction to work at the DFO Perth Airport Store be a direction to work there temporarily, but that the directions were directions to transfer to Oxford Shop’s only remaining store in Western Australia and were not and could not therefore have been directions to transfer temporarily. Moreover, the directions entailed no temporary modification of employment rights in relation to location of work, but rather the exercise of an existing contractual right to be able to direct Ms Evans to work at a location “As Directed”: see Evans (No 1) at [43] and [78]. The directions were therefore not directions “to perform duties during a period” under s 789GF(1)(a) of the FW Act, and therefore Oxford Shop was not required to give written notice of its intention to give a JobKeeper Enabling Direction.
Section 789GF(1)(a) of the FW Act also deals with a direction to perform duties “at a place … different from the employee’s normal place of work, including the employee’s home”. The Employment Contract makes express provision for the location of Ms Evans work, designating Ms Evans “Primary Location” as being “As Directed”, which meant that her work location or place of work was as instructed or ordered by Oxford Shop: Evans (No 1) at [40]. Ms Evans normal place of work was therefore her primary location as directed by Oxford Shop. In this case Ms Evans’ normal place of work was going to be the DFO Perth Airport Store in accordance with the instructions given, specifically, in both the 13 July 2020 Message and the 28 July 2020 Letter. It follows that, for the purposes of s 789GF(1)(a) of the FW Act, Ms Evans was not going to have a place of work “different from” her “normal place of work”, and therefore Oxford Shop was not required to give written notice of its intention to give a JobKeeper Enabling Direction.
It follows from the conclusions reached at [42]-[43] above that the directions given to Ms Evans were not, and were not required to be, JobKeeper Enabling Directions, and therefore Oxford Shop was not required to comply with s 789GM(1)(a) of the FW Act in relation to any direction to Ms Evans to work at the DFO Perth Airport Store, such a direction otherwise being a lawful and reasonable direction under the Employment Contract: see Evans (No 1) at [43] and [78]. It follows that the originating application should be dismissed, subject to the Court’s consideration of an “application” by Ms Evans to re-open the hearing and receive further evidence (as to which see Issue 4A at [72]-[87] below). It further follows that it is, therefore, strictly speaking unnecessary for the Court to consider Issues 1 to 4 and 3A.
Consideration in the alternative
Although it is strictly speaking unnecessary for the Court to consider Issues 1 to 4 and 3A the Court will nevertheless address Issues 1 to 3 and 3A in the alternative, lest the conclusion reached at [44] above is wrong, and will address Issue 4 separately.
Issue 1
If, contrary to the Court’s findings above, there was a JobKeeper Location of Work Enabling Direction, was written notice of the intention to give it given to Ms Evans?
Axiomatically, a written notice must be in writing. Having regard to the definition of “writing” in s 2B of the Acts Interpretation Act 1901 (Cth), that is that writing “includes any mode of representing or reproducing words, figures, drawings or symbols in a visible form”, the 8 July 2020 SMS Messages, 13 July 2020 Message and 28 July 2020 Letter are in writing and therefore theoretically capable of constituting the requisite written intention under s 789GM(1)(a) of the FW Act.
The next question is whether any written notice of intention was actually given by Oxford Shop. This is primarily a question of fact: Gardiner v Motor Vehicle Insurance Trust [1955] HCA 57; (1955) 95 CLR 120; (1955) 29 ALJ 689 (“Gardiner”); CLR at 126 per Fullagar, Kitto and Taylor JJ. The giving of a notice of intention to do something formally required does not, in the absence of specific statutory direction to the contrary, require undue formality or anything in the nature of a pleading: Gardiner, CLR at 126-127 per Fullagar, Kitto and Taylor JJ, but requires something more than mere intimation: Leeder v The Mayor, Etc, of the Town of Ballarat East [1908] VLR 214; (1908) 14 ALR 124; (1908) 29 ALT 192; VLR at 215 per A’Beckett J.
An “intention” requires more than mere contemplation, but rather a situation where the person giving the notice of intention has made a revocable, but not provisional, decision to try to bring about the state of affairs of which notice is being given: Cunliffe v Goodman [1950] 2 KB 237; [1950] 1 All ER 720; (1950) Sol Jo 179; (1950) 155 EG 202; (1950) 66 TLR 109; KB at 252 per Cohen LJ and 253 per Asquith LJ.
The first of the 8 July 2020 SMS Messages is:
(a)addressed to Ms Evans
(b)refers to “communication” between Mr Maddox and Mr Togno;
(c)tells Ms Evans that Mr Togno “would like you to commence work here at the DFO as of next week” (emphasis added); and
(d)indicates that Mr Maddox will get Ms Evans to work on a particular roster.
The use of the words “would like you to” means that the first 8 July 2020 SMS Message indicates what Oxford Shop wanted Ms Evans to do, that is to commence work at the DFO Perth Airport Store, but it is not a direction to do so. It is rather a notice of the state of affairs that Oxford Shop intends to bring about, which is to have Ms Evans commence work at the DFO Perth Airport Store. It is not, however, a notice that Oxford Shop intends to give Ms Evans a direction to work (or “perform duties” in the language of s 789GF(1)(a) of the FW Act) at the DFO Perth Airport Store, and is therefore not a written notice of intention to give a JobKeeper Location of Work Enabling Direction for the purposes of s 789GM(1)(a) of the FW Act.
The second 8 July 2020 SMS Message is not in the Court’s view capable of being construed as a written notice of intention to give a JobKeeper Location of Work Enabling Direction for the purposes of s 789GM(1)(a) of the FW Act. What the second 8 July 2020 SMS Message does is to draw Ms Evans attention to the consequences of her possible failure to return to work, and invites her to communicate further with Mr Togno, but gives no indication of an intention to give Ms Evans a JobKeeper Location of Work Enabling Direction.
The 13 July 2020 Message:
(a)directs Ms Evans to the provision of her Employment Contract which provides that her “Primary Location” is “As Directed”; and
(b)states that:
(i)all Oxford Shop staff in Western Australia “are now required employees to be at our DFO Store”; and
(ii)Mr Maddox “will have” Ms Evans “on the roster from this week”.
The 13 July 2020 Message is a direction to Ms Evans telling her that she is a required employee at the DFO Perth Airport Store, where she is to work (in accordance with the location provisions in the Employment Contract), and that she is on the roster to work there from a particular time. The content of the 13 July 2020 Message is that of a JobKeeper Location of Work Enabling Direction, and not that of a written notice of intention to give Ms Evans a JobKeeper Location of Work Enabling Direction for the purposes of s 789GM(1)(a) of the FW Act.
The 28 July 2020 Letter advises Ms Evans that if she does not confirm, by a certain time, her preparedness to work at the DFO Perth Airport Store, that that will be taken as a repudiation of her Employment Contract. As such the 28 July 2020 Letter does not constitute a written notice of intention to give Ms Evans a JobKeeper Location of Work Enabling Direction for the purposes of s 789GM(1)(a) of the FW Act.
It follows from the above that, for the purposes of the alternative consideration, Oxford Shop did not give Ms Evans a written notice of intention to give a JobKeeper Location of Work Enabling Direction for the purposes of s 789GM(1)(a) of the FW Act.
Issue 2
Issue 2 is whether, if Oxford Shop did give written notice of its intention to give a JobKeeper Location of Work Enabling Direction under s 789GM(1)(a) of the FW Act, whether it did so three days before any JobKeeper Location of Work Enabling Direction was given: FW Act, s 789GM(1)(b)(i).
Given that the Court has concluded at [56] above, that for the purposes of the alternative consideration, Oxford Shop did not give Ms Evans a written notice of intention to give a JobKeeper Location of Work Enabling Direction for the purposes of s 789GM(1)(a) of the FW Act, it follows that, for the purposes of the alternative consideration, no such written notice of intention has purported to have been given three days before any JobKeeper Location of Work Enabling Direction as required under s 789GM(1)(b)(i) of the FW Act.
Issue 3
Issue 3 is whether, if one or both of the requirements in s 789GM(1)(a) or (b)(i) of the FW Act have not been met, there is a JobKeeper Location of Work Enabling Direction that applies to Ms Evans: FW Act, s 789GM(1).
Section 789GM(1) of the FW Act is set out at [7] above. It provides that a JobKeeper Enabling Direction “given by an employer to an employee of the employer does not apply unless”, and then sets out requirements in:
(a)para (a) – for written notice of the employer’s intention to give a JobKeeper Enabling Direction;
(b)para (b) – for three days’ notice of the giving of a JobKeeper Enabling Direction, or a lesser period by agreement; and
(c)para (c) – for consultation before the giving of a JobKeeper Enabling Direction.
Each of paragraphs (a), (b), and (c) of s 789GM(1) of the FW Act is connected by the word “and”. In 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 (“Adams”) the Full Court of the Federal Court was dealing with fisheries management legislation, and in particular, a provision which provided that certain objectives “must be pursued by the Minister and the Authority in the administration of the Act, … and by the Authority in the performance of its functions”. Each of the five objectives was conjoined by the use of the word “and”. The Full Court of the Federal Court held that the use of the word “must”, and the linking of each of the five objectives with the word “and”, meant that each objective must be pursued by the Minister and by the Authority: Adams at 332 per Sheppard J (with whom Tamberlin J at 334 and Lehane J at 336 agreed). Adams was followed and applied by this Court (then styled as the Federal Circuit Court) in Eugene Cho Pty Ltd v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 2020; (2021) 361 FLR 340 (“Eugene Cho”) at [25] per Judge Lucev in relation to the use of “and” for the purposes of various paragraphs in reg 5.19(2) of the Migration Regulations 1994 (Cth) joined by “and”.
Applying Adams and Eugene Cho to the joinder of each of paragraphs (a), (b), and (c) of s 789GM(1) of the FW Act by the word “and” any JobKeeper Enabling Direction therefore “does not apply unless” each of those three paragraphs is satisfied. Given that the Court has already determined, in its alternative consideration, that neither para (a) or (b)(i) of s 789GM(1) of the FW Act has been satisfied by Oxford Shop, it follows that, in the alternative consideration, there is no JobKeeper Location of Work Enabling Direction that applies to Ms Evans.
Issue 3A
Section 789GM(1)(c) of the FW Act requires that before giving a JobKeeper Enabling Direction an employer should have “consulted the employee … about the direction”.
The meaning of consultation was considered in Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2016] FCA 1009; (2016) 262 IR 176 (“BHP Coal”) at [59]-[60] per Logan J as follows (original emphasis):
59.While cl 47 of the Enterprise Agreement, set out above, gives “Consult” or “Consultation” a particular meaning for the purposes of that agreement, that meaning is not, in my view, at variance with a meaning which one might have given those words in any event, having regard to prior authority. I had occasion to consider that meaning in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Ltd [2010] FCA 591; (2010) 198 IR 382 in which, at 395, [44]-[45], I observed:
44 … A key element of that content is that the party to be consulted be given notice of the subject upon which that party’s views are being sought before any final decision is made or course of action embarked upon. Another is that while the word always carries with it a consequential requirement for the affording of a meaningful opportunity to that party to present those views. What will constitute such an opportunity will vary according the nature and circumstances of the case. In other words, what will amount to “consultation” has about it an inherent flexibility. Finally, a right to be consulted, though a valuable right, is not a right of veto.
45To elaborate further on the ordinary meaning and import of a requirement to “consult” may be to create an impression that it admits of difficulties of interpretation and understanding. It does not. Everything that it carries with it might be summed up in this way. There is a difference between saying to someone who may be affected by a proposed decision or course of action, even, perhaps, with detailed elaboration, “this is what is going to be done” and saying to that person “I’m thinking of doing this; what have you got to say about that ?”. Only in the latter case is there “consultation”.
…
An appeal from this judgment was subsequently dismissed by the Full Court.
60.In the present case, it is necessary not just to remind oneself that a person’s right to be consulted does not confer any right of veto. It is also necessary to understand that the cl 47 definition affirms what an ordinary understanding of the word, “consult” would in any event suggest, which is that the obligation to consult does not carry with it any obligation either to seek or to reach agreement on the subject for consultation. Consultation is not an exercise in collaborative decision-making. All that is necessary is that a genuine opportunity to be heard about the nominated subjects be extended to those required to be consulted before any final decision is made. And it bears repeating in this case that that final decision is not the existence of the particular surplus. That genuine opportunity entails furnishing such information about the occasion for consultation as is reasonably necessary for the making of suggestions in respect of the subject for consultation and being receptive to any resultant suggestions. It does not mean that one cannot approach consultation with a particular outcome in mind, only that one’s mind not be unduly fixed.
These passages from BHP Coal were applied by this Court (then the Federal Circuit Court) in McJannet v Special Broadcasting Services Corporation t/as SBS Corporation [2016] FCCA 2937; (2016) 68 AILR 102-730 at [136] per Judge Altobelli.
An obligation to consult involves a real opportunity to be heard, and is not a mere formality or a perfunctory exercise: TVW Enterprises Ltd v Duffy and Others (No 3) (1985) 8 FCR 93; (1985) 62 ALR 63; FCR at 101 per Sheppard J; QR Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2010] FCAFC 150; (2010) 204 IR 142 at [80]-[81] per Gray J.
As the Court has observed at [42] above an examination of various communications between Ms Evans and Oxford Shop during July 2020 (the 8 July 2020 SMS Messages, 13 July 2020 Message and 28 July 2020 Letter) shows that the only available transfer was to the DFO Perth Airport Store, which was Oxford Shop’s only remaining store in Western Australia. The invitation in the third 8 July 2020 SMS Message to contact Mr Togno “[i]f you want to communicate further” is an invitation to communicate, not an invitation or opportunity to consult in the manner described in BHP Coal as set out at [64] above.
It follows that, for the purposes of the alternative consideration, there was no consultation with Ms Evans before any JobKeeper Location of Work Enabling Direction as required under s 789GM(1)(c) of the FW Act. This conclusion means that it is unnecessary to deal with whether any written record was kept for the purposes of s 789GM(4) of the FW Act.
Issue 4
Issue 4 is whether, if there is no JobKeeper Location of Work Enabling Direction that applies to Ms Evans, there is some other direction that constitutes a valid direction for the purposes of the Employment Contract or the JobKeeper scheme.
For reasons set out at [42]-[44] above there is no JobKeeper Location of Work Enabling Direction that applies to Ms Evans employment at Oxford Shop. Further, as set out at [33] above, it is only a JobKeeper Location of Work Enabling Direction that is relevant to Ms Evans claims for payment in lieu of notice of termination and redundancy payment. There is therefore no relevant JobKeeper Enabling Direction, or any other direction under Pt 6-4C of the FW Act, that relevantly applies to Ms Evans claims against Oxford Shop.
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.
The “evidence” that Ms Evans now seems to want the Court to have regard to comprises part of her submissions (as set out at [3(d)-(e)] above) and the documents annexed to her submissions as set out at [72(a)-(c)] above. Neither the submissions nor the documents as are on affidavit.
The submissions assert that:
(a)Ms Evans cares for her mother-in-law who had breast cancer and onset of dementia; and
(b)that she would have finished work at the DFO Perth Airport Store at 6pm in the evening and that it would have been approximately 8pm when she would have arrived home, that she would have prepared a meal for her mother in-law and delivered it to her at 9:30 pm at night which "is too late for a 82 year old woman to have her evening meal", and that Ms Evans would also need to check that her mother-in-law had taken her medication and would have arrived at her home "after normal sleep time" eventually leading to "sleep deprivation".
The above submissions appear to be a response to the findings in Evans (No 1) at [80] as follows:
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 has been no formal application in a proceeding to re-open the evidentiary case, nor is there any affidavit evidence to support such an application or to indicate what evidence might be sought to be led upon any re-opening of the evidentiary case for Ms Evans.
The submissions on which Ms Evans now seeks to rely are not evidence, and the documents are not in evidence, but in any event they are neither relevantly probative nor necessarily reliable in circumstances where:
(a)they do not indicate when Ms Evans commenced to care for Mrs W, and, in particular, whether she did so before the termination of her Employment Contract;
(b)they do not indicate when Mrs W was diagnosed with breast cancer or dementia (or indeed if she has been diagnosed with the latter), and, in particular, whether it was before the termination of the Employment Contract, and if Mrs W was diagnosed with breast cancer or dementia before the termination of the Employment Contract, the extent to which Mrs W then required, or would in the future require, the assistance of a carer;
(c)there is no indication as to whether other family members, or other volunteer or commercial care providers, were available to assist with caring for Mrs W at or around the time of the termination of Ms Evans Employment Contract, and, if not why not; and
(d)in relation to the documents annexed to Ms Evans latest submissions they are of limited probative value because they all post-date the termination of the Employment Contract, and in the case of:
(i)the Discharge Summary it indicates Mrs W had clinical intervention for a diagnosis of breast cancer by way of a mastectomy and single node biopsy during a hospital admission from 25 to 31 March 2021, nearly seven months after the termination of the Employment Contract, but does not indicate when the breast cancer was diagnosed;
(ii)the October 2020 Carer Payment Summary it is for a period commencing on 22 September 2020, almost two months after the termination of the Employment Contract; and
(iii)the 2022 Carer Payment Statement it is for a period of almost three months commencing on 12 March 2022, which is more than 18 months after the termination of the Employment Contract.
In order to deal with these issues it would be necessary to re-open Ms Evans evidentiary case, which would require, or be likely to require (particularly if the facts are in dispute):
(a)the filing of further affidavits by Ms Evans, family members of Mrs W, and Mrs W’s medical and health professionals;
(b)the granting of leave to Oxford Shop to access Mrs W’s medical records;
(c)Oxford Shop to be allowed to file further responsive affidavits; and
(d)further cross-examination and re-examination of the deponents of any affidavits.
As indicated in the extract from Evans (No 1) at [80] set out at [78] above, Ms Evans led no evidence about caring responsibilities in the July 2021 hearing. Nor, in relation to the July 2021 hearing, was any claim made about caring responsibilities in the Claim Form, or in Ms Evans affidavit filed 7 August 2020. At the time of, and leading up to, the termination of the Employment Contract, in the various communications sent by Ms Evans to Oxford Shop there was also no mention of any caring responsibilities. The failure to mention the alleged caring responsibilities at these times, and the failure to adduce any evidence about those alleged caring responsibilities at the July 2021 hearing, remain unexplained.
To re-open the evidentiary hearing at this stage would mean that a matter filed in August 2020, and which went to hearing in July 2021, and which appeared to be a relatively straightforward claim for alleged non-payment of notice on in lieu of termination and redundancy payment, and which then went to a further hearing in June 2022 as a result of a claim made late and without notice by Ms Evans in the July 2021 hearing, would now go to a third day of hearing, in relation to a small claim under s 548 of the FW Act for an amount of $13,170. It would do so in circumstances where the evidence of caring responsibilities was, for reasons which remain unexplained, not adduced by Ms Evans at the July 2021 hearing, and where there is no actual application to re-open the evidentiary hearing, and no affidavit evidence explaining why the evidence was not adduced in the earlier July 2021 hearing, or what the full extent of the evidence is, or is likely to be, and where what is now contained in Ms Evans most recent submissions and the documents annexed thereto are neither relevantly probative nor necessarily reliable for reasons set out at [80] above.
For the Court to deal with the matter of Ms Evans alleged caring responsibilities on the basis of Ms Evans’ most recent submissions and the documents annexed thereto would be to deny Oxford Shop procedural fairness insofar as they have not had an opportunity to deal with and, if necessary, challenge the factual content of Ms Evans’ most recent submissions and the documents annexed thereto, or to establish a contrary factual case. The opportunity to file submissions in accordance with the June 2022 Orders is not such an opportunity, or at least not a fair opportunity to deal with potentially disputed factual issues. To have regard to Ms Evans most recent submissions and the documents annexed thereto without affording Oxford Shop a proper opportunity to challenge the factual content of Ms Evans’ most recent submissions and the documents annexed thereto, or to establish a contrary factual case, would be plainly prejudicial to Oxford Shop.
The Court is also conscious that there is a point at which it is in the public interest for litigation to end, but that that needs to be weighed in the balance with the interests of all the parties to the litigation and the interests of justice.
In circumstances where:
(a)there has been no application in a proceeding to re-open the evidentiary case, nor is there any affidavit evidence to support such an application or to indicate what evidence might be sought to be led upon any re-opening of the evidentiary case for Ms Evans;
(b)the submissions on which Ms Evans now seeks to rely are not evidence, and the documents are not in evidence, but neither are they relevantly probative nor necessarily reliable;
(c)Ms Evans led no evidence about caring responsibilities in the July 2021 hearing;
(d)failure to mention the alleged caring responsibilities at relevant times, and the failure to adduce any evidence about those alleged caring responsibilities at the July 2021 hearing, remain unexplained;
(e)to re-open the evidentiary hearing at this stage would mean that the matter would go to a third day of hearing, in relation to a small claim under s 548 of the FW Act for an amount of $13,170; and
(f)to deal with the matter of Ms Evans alleged caring responsibilities on the basis of Ms Evans’ most recent submissions and the documents annexed thereto would be to deny Oxford Shop procedural fairness, and would also be prejudicial to Oxford Shop,
those circumstances outweigh any contrary circumstances, including the interests of Ms Evans, such that the Court does not consider it appropriate, in the exercise of its discretion in such matters, to allow any re-opening of the hearing to allow further evidence to be adduced in relation to Ms Evans alleged caring responsibilities.
In light of the conclusion reached in the preceding paragraph, the Court re-iterates its earlier conclusion – at [44] above - that the originating application should be dismissed.
FURTHER ISSUES
As indicated at [12] above Ms Evans has now raised further issues with the Court.
Ms Evans has sent two brief emails to the Court within the last month. On the first occasion Ms Evans indicated that she seeks to have the matter reheard, but without Oxford Shop being legally represented. On the second occasion Ms Evans has indicated that she has “new evidence” she wishes to submit which will, she alleges, prove that:
(a)Oxford Shop had an “ulterior motive” for the request for her to commence employment at the DFO Perth Airport Store; and
(b)that there was “not a genuine vacancy for a branch manager”.
In the absence of a properly framed application in a proceeding supported by some evidence on affidavit it is not possible to draw any conclusions as to the merit of the matters adverted to by Ms Evans in her emails. They should not, however, be dismissed out of hand, and Ms Evans should be given an opportunity to properly put these matters (but not other matters) before the Court. Therefore, if Ms Evans wishes to have the Court deal with these matters she should file an application in a proceeding, supported by affidavit. The Court will allow 21 days for Ms Evans to do so, and will stay the order for dismissal of the originating application for that period, and if the application in a proceeding is made, supported by affidavit, then the stay will continue until further order of the Court.
CONCLUSION AND ORDERS
For the reasons set out above the Court has concluded that:
(a)the originating application filed 11 August 2020 be dismissed;
(b)the order for dismissal of the originating application is to be stayed until 4.00pm on 17 August 2023;
(c)the applicant have leave to file an application in a proceeding seeking a new hearing or the admission of new evidence, and any affidavits in support thereof, by 4.00pm on 17 August 2023;
(d)if the applicant files an application in a proceeding by 4.00pm on 17 August 2023, the order for dismissal of the originating application is to be stayed until further order of the Court; and
(e)if the applicant files an application in a proceeding by 4.00pm on 17 August 2023, the matter be adjourned to a directions hearing at 11.00am on 25 August 2023.
As to costs, there will be an order that costs, if any (as to which see FW Act, s 570), be reserved.
I certify that the preceding ninety-two (92) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 27 July 2023
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