Ingersole v Castle Hill Country Club Limited
[2014] FCCA 450
•11 March 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| INGERSOLE v CASTLE HILL COUNTRY CLUB LIMITED | [2014] FCCA 450 |
| Catchwords: INDUSTRIAL LAW – Where Applicant’s employment terminated on grounds of redundancy – whether adverse action for a proscribed reason relating to workplace rights within s.340 of the Fair Work Act 2009 – when a definite decision was made by the Respondent activating notification and consultation provisions in an Award – identification of decision-makers for corporate respondent – whether Respondent met reverse onus – whether employer breached applicable Award – whether employer contravened s.117 of the Fair Work Act in relation to requirement of written notice – consideration of when written notice is ‘given’ to an employee for the purposes of s.117 of the Act. |
| Legislation: Evidence Act 1995 (Cth), ss.140, 160 |
| Amcor Limited v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241; (2005) 214 ALR 56; (2005) 79 ALJR 703; [2005] HCA 10 Australian Licensed Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd [2011] FCA 333 Australian Licenced Aircraft Engineers Association v Qantas Airways Limited [2013] FCCA 592 Australian Workers’ Union v BHP Iron Ore Pty Ltd (2000) 106 FCR 482; [2000] FCA 39 Begley v Austin Health [2013] FMCA 68 Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 290 ALR 647; [2012] HCA 32 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Ltd (2010) 198 IR 382; [2010] FCA 591 Construction, Forestry, Mining & Energy Union v Pilbara Iron Company (Services) Pty Ltd (No.3) [2012] FCA 697 Electrical Trades Union of Australia v Sims Products Pty Ltd (1988) 42 IR 250 Finance Sector Union of Australia v Commonwealth Bank of Australia (2005) 224 ALR 467; [2005] FCA 1847 General Motors-Holden's Pty Ltd v Bowling (1976) 136 CLR 676; (1976) 51 ALJR 235 Gibbs v Mayor, Councillors and Citizens of City of Altona (1992) 37 FCR 216; (1992) 42 IR 255 Jones v Queensland Tertiary Admissions Centre Ltd (No.2) (2010) 186 FCR 22; [2010] FCA 399 Kucks v CSR Limited (1996) 66 IR 182 Liquor, Hospitality and Miscellaneous Union v Arnotts Biscuit Ltd (2010) 188 FCR 221; [2010] FCA 770 Maritime Union of Australia v CSL Australia Pty Ltd (2002) 113 IR 326; [2002] FCA 513 McIlwain v Ramsey Food Packaging Pty Ltd (2006) 154 IR 111; [2006] FCA 828 Minister for Immigration v Singh [2000] FCA 377 Municipal Officers Association of Australia v City of Bayswater (1988) 30 AJLR 15; (1987) 22 IR 45 National Tertiary Education Industry Union v Central Queensland University [2008] FCA 481 National Tertiary Education Union v Royal Melbourne Institute of Technology [2013] FCA 451 Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 153 ALR 641; [1998] HCA 31 Qantas Airways Limited v Australian Licensed Aircraft Engineers Association (2012) 202 FCR 244; [2012] FCAFC 63 QR Limited v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2010] FCAFC 150 Ramos v Good Samaritan Industries [2013] FCA 30 Siagian v Sanel Pty Ltd (1994) 122 ALR 333 Wacando v Commonwealth (1981) 148 CLR 1; [1981] HCA 60 Wolfe v Australia and New Zealand Banking Group Ltd [2013] FMCA 65 |
| Applicant: | ELIZABETH INGERSOLE |
| Respondent: | CASTLE HILL COUNTRY CLUB LIMITED |
| File Number: | SYG 1478 of 2012 |
| Judgment of: | Judge Barnes |
| Hearing dates: | 9,10, 11, 12 and 25 July and 2 August 2013 |
| Delivered at: | Sydney |
| Delivered on: | 11 March 2014 |
REPRESENTATION
| Counsel for the Applicant: | M Perry |
| Solicitors for the Applicant: | Sullivan Fernan |
| Counsel for the Respondent: | SEJ Prince |
| Solicitors for the Respondent: | HWL Ebsworth |
DECLARATIONS
That the Respondent contravened s.117(1) of the Fair Work Act 2009 (Cth) in terminating the Applicant’s employment on 1 March 2012 prior to the date on which written notice of the day of the termination was given to the Applicant and is thus in contravention of s.44 of the Fair Work Act.
ORDERS
Within 14 days of today’s date the parties are to bring in Short Minutes of Order or, in the absence of agreement, are to file written submissions in relation to quantification of compensation to be paid to the Applicant in respect of the contravention of s.44 of the Fair Work Act.
The matter be listed for a hearing on penalty in relation to the contravention of s.44 on a date to be fixed.
The application is otherwise dismissed.
| FEDERAL CIRCUIT COURT AT SYDNEY |
SYG 1478 of 2012
| ELIZABETH INGERSOLE |
Applicant
And
| CASTLE HILL COUNTRY CLUB LIMITED |
Respondent
REASONS FOR JUDGMENT
These proceedings
The Applicant, Elizabeth Ingersole, alleges that the Respondent, Castle Hill Country Club Limited (the Club), took adverse action against her in contravention of s.340 of the Fair Work Act 2009 (Cth) (the Act), breached s.45 of the Act by contravening a term of the Registered and Licensed Clubs Award 2010 (the Award) and breached s.44 of the Act by failing to comply with s.117(1) of the Act. Her complaints relate to the circumstances and manner in which her employment was terminated by the Club on or about 1 March 2012.
Ms Ingersole was employed by the Club as administration manager. It is not in dispute that her employment was subject to the Award. As discussed further below, on 29 February 2012 a majority of the Board of Directors of the Club voted in favour of a resolution making two positions, including the position occupied by Ms Ingersole, redundant (the redundancy resolution). On 1 March 2012 she was informed that her position had been made redundant. She commenced these proceedings on 5 July 2012.
Ms Ingersole asserted that there was a contravention of s.340 of the Act. She claimed that she had workplace rights to be notified and consulted about major workplace changes likely to have significant effects on her employment and to participate in discussions regarding any such definite decision under cl.8 of the Award and to participate in a dispute resolution process as provided for in cl.9 of the Award, as well as a more general right to make a complaint or inquiry in relation to her employment.
Ms Ingersole claimed that the Club took adverse action against her on 1 March 2012 in dismissing her from her employment on the grounds of redundancy; by dismissing her without any notice or warning; by refusing or failing to consult with her about any decision in accordance with cl.8 of the Award; by dismissing her without allowing her to participate in a dispute resolution process in accordance with the Award and by dismissing her in a way that was said to be “peremptory including arranging for her to be immediately escorted from the Respondent’s premises with directions that she not be allowed to speak to any other employee or board member…before leaving the premises”.
It is alleged that the Club took such adverse action to prevent the exercise by Ms Ingersole of her workplace rights and/or because she had workplace rights and/or proposed to exercise such rights or because she had exercised or proposed to exercise such rights in the past. The basis for such contention is pleaded in the Amended Statement of Claim.
Ms Ingersole also claimed that insofar as the Club failed to comply with the provisions of cll.8 and 9 of the Award in relation to notification, consultation and discussion regarding major workplace change and participation in a dispute resolution process this constituted a contravention of a Modern Award and hence a breach of s.45 of the Act.
Counsel for the Applicant encapsulated these aspects of Ms Ingersole’s claims as a claim that she was deprived of her workplace rights of consultation, discussion and complaint because the Club made a decision to introduce workplace change which it concealed from her (see the observation by Merkel J at first instance in Finance Sector Union of Australia v Commonwealth Bank of Australia (2005) 224 ALR 467; [2005] FCA 1847 at [126]).
Further, Ms Ingersole alleged that in breach of s.44 of the Act the Club failed to comply with the written notice requirements in s.117 of the Act in that she was dismissed on 1 March 2012, but not given written notice of her dismissal until on or after 6 March 2012.
In the Form 2 accompanying her initiating application Ms Ingersole claimed compensation for loss of income following the termination of her employment. In the Form 2 and her Amended Statement of Claim Ms Ingersole also sought unparticularised civil remedies under s.539 of the Act and civil penalties to be paid to her, as well as interest and costs. In the Amended Statement of Claim she further sought any other order pursuant to s.545 of the Act that the Court considered appropriate.
The Club disputed liability on all bases alleged. In particular, it denied that Ms Ingersole’s workplace rights were as extensive as was alleged, denied that it took adverse action or breached the Award as alleged, asserted that it terminated the employment of the Applicant on the grounds of genuine redundancy and claimed that it met any onus placed on it by s.361 of the Act in relation to its motivation. It asserted that there was no failure to comply with the Award and that written notice of the day of termination of employment was given to Ms Ingersole in accordance with s.117 of the Act.
The hearing proceeded as a hearing on liability only.
The Evidence
Ms Ingersole relied on affidavits affirmed by her on 4 February 2013 and 12 April 2013, an affidavit of Roger Allsop and an affidavit of Bill Muter. Each of these witnesses was cross-examined. The Respondent did not take general issue with the credit of Mr Allsop, Mr Muter or, indeed, with that of Ms Ingersole.
Mr Allsop is a retired operations director and long-term member of the Club who has been a member of the Board of directors for a number of years and served as Vice-President and President. In particular, he was President of the Club from October 2003 to October 2009 and from October 2010 to October 2011. Mr Allsop was not a member of the Board for the year commencing October 2011. Ms Ingersole’s employment was terminated on 1 March 2012. Mr Muter, a retired assistant general manager, was a director of the Club for 14 of the 16 years preceding October 2011. He was not on the Board for the year commencing October 2011.
Mr Allsop and Mr Muter generally impressed as witnesses of truth. However the weight to be given to their evidence relevant to the reason for any adverse action by the Club is considered in context. While there are some inconsistencies or differences in perception between the evidence of Ms Ingersole and other witnesses they are not such as to render her a generally unreliable witness. Relevant issues are discussed below.
The Club relied on affidavit evidence of Sandra Anne Turner, Duncan Leeton Walker, John Stephen Dakin, Celestine Michel, Philip Evan Moore and David Alan Geraghty. Ms Turner, an employee of the Club was not required for cross-examination. She gave evidence about posting and delivery of notice of redundancy letters to Ms Ingersole. Mr Walker is the operations manager for the Club. From mid-January 2012 to early May 2012 he acted as a conduit between the staff and the Board during the absence of the CEO, Mr Fraser on sick leave. No issue was taken with his general credibility.
Ms Michel, Mr Moore, Mr Dakin and Mr Geraghty (the Board members) were all on the Board of the Club in the year commencing October 2011. At a Board Meeting held on 29 February 2012 each of them voted in favour of the resolution to make the positions of administration manager and event coordinator (sometimes referred to as events manager) redundant.
Mr Geraghty, a chartered accountant and general manager, was a Board Member from October 2002 to October 2010 and from October 2011. He was Vice President from October 2005 to October 2009 and President of the Club between October 2009 and October 2010 and again from October 2011 on. Mr Moore, a retired company director and businessman, was President of the Club for three years from October 2000 and Vice-President from October 2011 to October 2012. Mr Dakin, an accountant and chief operating officer, was Vice-Captain of the Club for the year commencing October 2011. Ms Michel, a managing director, was a Director of the Club for 12 months from October 2011.
Counsel for the Applicant took issue with various aspects of the evidence of the Board Members in relation to whether their evidence about their stated reasons for the asserted adverse action should be accepted as reliable. As discussed further below, the Applicant submitted that this “concealment” of the redundancy proposal and the “unsatisfactory nature” of the Board members’ evidence, in particular that of Mr Geraghty, went to show that the decision or proposal to make Ms Ingersole redundant was kept confidential because of the concern that she would have made some complaints or inquiries and that was for the purpose of trying to obviate or avoid opposition or the initiation of a dispute resolution process by Ms Ingersole which might have jeopardised the proposal to make her job redundant. The Applicant submitted that the Court should be satisfied that these witnesses were involved in and aware of the proposed redundancy of Ms Ingersole before the Board meeting of 29 February 2012, but were prepared to keep it concealed from Ms Ingersole so that she could not exercise her workplace rights. In essence, it was contended that the manner in which the Club terminated Ms Ingersole’s employment was to stop her making some complaint or inquiry.
In the alternative it was submitted that the evidence of the Board members supported the proposition that Mr Geraghty was for all practical purposes the mind of the Respondent, at least in relation to the effects of the major workplace change on Ms Ingersole. These contentions are discussed below in relation to the adverse action claim and the s.361 issues.
The Applicant appeared to submit generally that Ms Michel was not a reliable witness, based on what were said to be answers of “concern” and inconsistencies in her evidence. Accordingly I consider that issue at this stage.
Ms Michel is managing director of a business consultancy practice which provides assistance to organisations in areas of strategic and business planning, organisational management and project management. The Applicant took issue with Ms Michel’s evidence in cross-examination about whether the project management and strategic business planning and organisational matters in which she had professional experience involved or gave her experience of redundancies. I am not persuaded that her evidence in this respect was evasive. She explained that her role was to facilitate the project management process. She acknowledged that the organisations she assisted may choose to make people redundant as part of the restructuring process. She made it clear that it was not part of her professional role to deal with redundancies of her client’s employees.
The Applicant also contended that the “concern” Ms Michel expressed in her affidavit about the absence of the Club CEO from work on sick leave in early 2012 in circumstances of ill health was inconsistent with the views she expressed at a Board meeting on 29 February 2012 that the administration manager’s (and the Event Coordinator’s) duties could be shared with existing staff. This inconsistency was said to be such as to raise concerns about the reliability of Ms Michel’s evidence about her reasons for adverse action.
This contention is not supported by the evidence. Counsel for the Applicant put to Ms Michel that “getting rid” of the administration manager while the CEO was away may worsen the position. However Ms Michel explained her view. She responded that the redundancy saved costs. She subsequently explained that in her view there were no other “long term beneficial options” or other cost savings options apart from those that would have reduced services to members. Such explanation was consistent with Ms Michel’s affidavit evidence that after she attended the Club Finance Committee meeting on 22 February 2012 it was evident to her that the Board had to take remedial action with respect to the financial position of the Club, that she had considered a number of cost saving options based on her experience with multiple clients over the years and that, regrettably, the most obvious option for a “long term” beneficial effect was a restructure of staff with a view to making positions redundant within the Club.
Further, contrary to the Applicant’s contention, Ms Michel’s evidence about why she rejected other cost saving options (because they could have reduced services to members) does not go to show that she was not a reliable witness. She explained that she regarded the redundancy of the positions of the administration manager and event coordinator as being about reducing costs and that these were the areas that appeared to have the most potential for cost reduction with minimal service reduction to members. Her subsequent evidence that alternative cost savings options would be to let the maintenance area go, cease to run the restaurant or close the Club is to be seen in light of this earlier explanation. This evidence does not establish that Ms Michel was not a reliable witness.
Insofar as criticism is made of the reliability of Ms Michel’s evidence on the basis of her failure to recall particular matters in cross-examination, having regard to all of her evidence I am satisfied that the occasions on which she indicated that she could not recall matters are not indicative of evasiveness, but rather of an honest recognition of an inability to recall specific events from some 18 months prior to the time at which she gave evidence. On the other hand, to criticise her for remembering, without prompting, the precise date that Mr Fraser took ill, overlooks her explanation that it was a most disturbing event and that it occurred on Friday the 13th. I am satisfied that Ms Michel was a witness of truth.
Insofar as the Applicant raised other issues in relation to whether the evidence of Ms Michel about events preceding the Board meeting of 29 February 2012 and the reason she voted in support of the redundancy resolution should be accepted, these matters are discussed below in the context of consideration of s.361 of the Act.
The Applicant also took issue with aspects of the evidence of the other Board members. Insofar as these submissions related to the general credibility of the other witnesses for the Club, as discussed in more detail below, I am not persuaded that any of these witnesses was lying or deliberately set out to mislead the court or that there were other concerns such as to render the whole of their evidence unreliable.
The issues raised about whether Mr Dakin’s reasons and explanations for any adverse action should be accepted are discussed below. However I note that the evidence in relation to the Board meeting on 29 February 2012 outlined below is not supportive of the Applicant’s contention that Mr Dakin was being “less than honest” in his evidence that before that meeting he was not aware of the details of Mr Geraghty’s motion that Ms Ingersole’s position be made redundant.
It was not suggested that the concerns the Applicant expressed about Mr Moore’s evidence, in particular in relation to Mr Moore’s explanation for keeping the possibility of making Ms Ingersole’s job redundant confidential prior to the redundancy resolution, were such as to render him an unreliable witness generally.
Counsel for the Applicant did take issue with the reliability of a number of specific aspects of Mr Geraghty’s evidence in relation to his motivation and whether he planned Ms Ingersole’s redundancy in concert with other Board members. These concerns are considered where relevant, particularly in relation to whether the Club has met the reverse onus in s.361 of the Act.
A general concern was raised about the reliability of Mr Geraghty’s evidence, having regard to his evidence about not speaking to other Board members about certain matters prior to the Board meeting on 29 February 2012. Some differences of recollection did emerge in cross-examination. Mr Geraghty’s evidence was that information before him after the Club’s Finance Committee meeting of 22 February 2012 led him to review position descriptions, including that of the administration manager, but that he did not speak to anybody else about this and, in particular, did not speak to any of the other Board members about this until the Board meeting on 29 February 2012.
Mr Geraghty did not initially recall any discussion with Ms Michel prior to putting the redundancy resolution to the meeting of 29 February 2012. In contrast, Ms Michel’s evidence was that one or two days before the 29 February 2012 Board meeting (after the Finance Committee meeting both she and Mr Geraghty attended) she spoke to Mr Geraghty over the telephone to voice her concerns about the costs of the administration, suggested that they needed to save money and that she thought they needed to restructure, to which Mr Geraghty responded with words to the effect, “It’s an option we have to look at.” She recalled that it was a very brief discussion and could not recall who had telephoned whom. Mr Geraghty subsequently recalled that after the Finance Committee meeting he had had a discussion with Ms Michel about the Club’s finances.
I accept that Ms Michel had a conversation with Mr Geraghty in the brief and general terms she recalled. However Ms Michel did not claim that she had any conversation with Mr Geraghty about the specific issue of making Ms Ingersole’s position redundant. I accept her evidence in this respect. Any “inconsistency” in the evidence in this respect is to be seen in light of the time that has passed and the nature of the conversation which was between Board and Finance Committee members. The fact that Mr Geraghty did not initially recall a brief general discussion with Ms Michel of some 18 months earlier or that she raised the possible need to “restructure” the Club is not such, either alone or in combination with the other concerns raised by the Applicant, as to establish that Mr Geraghty was a generally unreliable witness. The relevance of this difference in recollection to Mr Geraghty’s reasons for adverse action is discussed further below.
The Applicant also expressed concern about the fact that while Mr Geraghty’s evidence was that he had kept the redundancy proposal from Mr Moore prior to the Board Meeting of 29 February 2012 and that he did not recollect speaking to any of the other Board members about the proposal to suggest redundancies prior to the meeting of 29 February 2012, Mr Moore’s subsequent evidence in cross-examination was that he had a conversation with Mr Geraghty before the Board meeting on 29 February 2012 in which he gave the benefit of his experience to Mr Geraghty. The discussion included possibly making one or two positions, including the administration manager’s position, redundant. Mr Moore’s recollection was that he initiated discussion about such possible redundancy.
This conversation is also discussed further below, but for present purposes I accept the evidence of Mr Moore that a conversation with Mr Geraghty occurred on 29 February 2012, although Mr Moore stated in cross-examination that he had no specific recollection of what was said. Mr Geraghty’s failure to recollect (when the issue of prior discussions was canvassed) that on the day of the Board meeting he had some discussion with Mr Moore (the Club Vice-President) about the need to restructure and the possibility of making one or two positions vacant, including that of the administration manager, is to be contrasted with Mr Moore’s acknowledgement that he understood that it was likely that Ms Ingersole’s position would be made redundant. However, as discussed further below, it is clear that in Mr Moore’s view this would depend on the vote of the Board and that no redundancy would occur unless the Board voted for it. Moreover it is not Mr Moore’s evidence that Mr Geraghty told him that he proposed to put a redundancy motion to the Board meeting or that there was any secretive plan or agreement with Mr Geraghty in relation to making Ms Ingersole redundant.
The relevance of this evidence in relation to the time at which the Respondent made a definite decision and as to whether the Respondent has met the reverse onus in s.361 of the Act is discussed below.
For present purposes, while Mr Geraghty’s failure to recall any relevant pre-Board meeting conversations, in particular with Mr Moore, raises a concern about his recollection of past events, it is not such as to render him an unreliable witness in all respects. The witnesses were endeavouring to recall events of some 18 months earlier. Mr Moore’s evidence was not inconsistent with Mr Geraghty’s assertion that he did not inform other Board members that he intended to put the redundancy motion that he proposed at the Board Meeting of 29 February 2012. I am not persuaded that Mr Geraghty gave false testimony in this respect.
However I have borne these issues in mind, particularly where there is a difference in recollection between Mr Geraghty and other witnesses about past events. In such instances I prefer the evidence of such other witnesses. Other concerns raised by the Applicant about aspects of Mr Geraghty’s evidence, including about his pre-2012 attitude to Ms Ingersole, are considered where relevant below.
Mr Fraser, who was the CEO of the Club at all relevant times, did not give evidence in these proceedings. Nor did any of the three members of the Board who did not vote for the redundancy resolution of 29 February 2012.
The Club
The Club is a company which provides golfing and related facilities for members and guests. The Constitution of the Club makes provision for election and powers of a Board of directors (the Board) of seven persons who are to be elected annually (from October each year) at an annual general meeting. The Board is responsible for the management of the business and affairs of the Club. In addition to its general powers the Board has specific powers under cl.43 of the Constitution including, relevantly, to delegate any of its powers to committees (cl.43(a)); to make regulations (cl.43(b)); to appoint, discharge and arrange the duties and powers of the CEO and to determine remuneration and terms of employment and to specify and define the duties of the CEO (cl.43(g)(i)). Relevantly, the Board also has the power from time to time:
… to engage, appoint, control, remove, discharge, suspend and dismiss Chief Executive Officers, representatives, agents and servants or other employees in respect to permanent, temporary or special services as it may from time to time think fit and to determine the duties, pay, salary, emoluments or other remuneration and to determine with or without compensation any contract for service or otherwise. (Cl.43(g)(ii)).
The Board is to meet at least once a month for the dispatch of business. Meetings are to be presided over by the President of the Club (cl.46). Clause 48 of the Constitution provides that:
Subject to the Constitution, questions arising at any meeting of the Board shall be decided by a majority of votes and a determination by a majority of the Members of the Board shall for all purposes be deemed a determination of the Board. In case of an equality of votes the Chairman of the Meeting shall have a second or casting vote.
Clause 75 of the Club’s Constitution is as follows:
At any time there shall only be one Secretary of the Club who shall be appointed by the Board. The appointment may be terminated by the Board at any time. The Secretary may be referred to as the Chief Executive Officer if so determined by the Board.
Clause 77 of the Club’s Constitution provides that “The Secretary shall keep minutes of all resolutions of the Board and the names of the Board Members present.”
Clause 84 deals with duties of Sub-Committees. The Finance Committee is to:
(a) Deal with all matters pertaining to the Club’s finances and shall report and recommend thereon to the Board.
(b) Keep the Board fully informed from month to month of the income and expenditure of the Club and its relationship to estimates.
(c) Prepare a budget of income and expenditure for the finance year.
(d) Ensure that all claims upon the Club and cash disbursements have been properly authorised, and certified to by a responsible officer or officers and after examination make appropriate recommendations to the Board as to confirmation of and/or passing for payment thereof.
(e) Consider and make recommendations of reference made to it by other Sub-Committees in the matter or ordinary or extraordinary expenditure.
The Club President is ex-officio a member of all sub committees which remain subject to the control of the Board (cl.83(b) and (c)).
The Regulations of the Club provide that complaints on all matters connected with the management or services of the Club or the conduct of any employee are to be made to the CEO. If the CEO is unable to satisfy the complainant he (sic) is to submit the matter to the President or Sub-Committee concerned.
Under the heading “Staff” the Regulations state:
No employee of the Club shall be directly reprimanded or given any directions or instructions regarding the matter of work or terms of employment by an individual or committee man”
The Factual Background
The claims made by Ms Ingersole are such that it is necessary to have regard not only to events of early 2012 leading up to and culminating in her termination and what occurred immediately thereafter, but also to earlier events during the time that Ms Ingersole worked for the Club. I was assisted by a Joint Chronology prepared by the Respondent’s legal representatives and annotated by the Applicant’s legal representatives, but have had regard to all the evidence.
It is not in dispute that Ms Ingersole was employed by the Club from October 2002 to 1 March 2012, that from 1 January 2010 her employment was covered by the Award and that the Act and Award applied to the Club at all material times in 2012.
Ms Ingersole commenced employment with the Club in October 2002 as a temporary office administration clerk. In January 2003 she was appointed assistant to the CEO. She became administration manager in about 2006. According to a 2010 position description, this position had overall responsibility for the successful operation of the administration, office and reception functions and for maintenance and management of all information technology requirements of the Club, and included provision of assistance with human resource requirements and ensuring the ongoing functionality of the Club Occupational Health and Safety Committee. As administration manager Ms Ingersole reported to the CEO.
Mr Stuart Fraser was appointed CEO and hence Secretary of the Club in or about 2004. Mr Allsop became President of the Club in October 2004. Ms Ingersole began to attend Board meetings from some time in or about 2004 to take minutes of the meeting.
The Two Tee Issue
In or about April 2009 the Board included, relevantly, Mr Allsop as President, Mr Geraghty as Vice-President and Mr Muter. At or about that time the Board resolved to change Sunday golf tee times from a two tee start to a one tee start. This decision was made at a time when Ms Ingersole attended Board meetings and, on her own evidence took notes and minutes on behalf of Mr Fraser. In cross-examination she agreed that she described her role as implementing policy and direction and providing advice to achieve Club goals in her applications for other jobs.
After the one tee start was implemented, Mr Geraghty told Ms Ingersole that the Board members wanted the Sunday fields to be changed back to two tee starts because they had had numerous complaints from members. She said she could not make such changes. She was of the view that she could not do so without authorisation from the CEO. Mr Fraser and the then President Mr Allsop were absent from the Club at that time.
On 1 May 2009 Ms Ingersole sent Mr Geraghty an email advising him that the Match Committee would meet the next Saturday to discuss the issue. In his response (copied in to all other members of the Board and the CEO) Mr Geraghty stated that he had discussed the issue with the CEO and had obtained agreement of all available Board members to revert to the two tee start. He expressed concern about member responses if the issue was deferred. He explained that he was “not having a go at” Ms Ingersole, but that the Board would look indecisive if the decision was further delayed. Ms Ingersole responded that she was not sure when Mr Geraghty had spoken to the CEO “but at the end of my discussion with him, that is what I was requested to do. I have no further information than that”.
Ms Ingersole’s evidence is that at the next Board Meeting a “heated” discussion about the “incident” took place between Mr Allsop and Mr Geraghty in which Mr Geraghty was effectively reprimanded. She claimed that in the following months she perceived a change in Mr Geraghty’s attitude towards her, in that he was “less friendly”.
In cross-examination Ms Ingersole maintained that Mr Geraghty was hostile to her, despite the fact that she was subsequently invited to sit on Sub-Committees while he was President, invited by him to represent the Club at a function and despite subsequent email exchanges with him that she acknowledged were cordial and polite. Insofar as she claimed Mr Geraghty was critical of her in emails sent to others, there is no evidence of such emails.
According to Mr Allsop, whose evidence in this respect I accept, he spoke to Ms Ingersole after his return. She was apparently upset at being put in this position as it was not for her to change the tee times without the authority of the Board and a direction from Mr Fraser. However there is no evidence that Ms Ingersole made a complaint or inquiry in relation to her employment with respect to these events. Mr Allsop did not given evidence about what occurred at the next Board meeting. Mr Muter’s evidence, which I accept, is that the Board advised Mr Geraghty that the way he had dealt with the problem was inappropriate and that Ms Ingersole’s approach was correct.
Mr Muter claimed that thereafter he observed a change of attitude by Mr Geraghty to Ms Ingersole to one of “coolness” and criticism of her work performance. By way of example, he claimed that he observed that when they had charity days Mr Geraghty did not praise Ms Ingersole’s work and if he walked past her he did not acknowledge her. Mr Allsop also observed that thereafter Mr Geraghty’s attitude towards Ms Ingersole changed and that Mr Geraghty would sometimes ignore her presence and would sometimes speak to her in a way that Mr Allsop felt caused unnecessary tension.
Mr Geraghty claimed that he was not agitated with Ms Ingersole and that this issue did not bear on his decision to support the resolution of 29 February 2012 to make two positions redundant. In cross-examination Mr Geraghty claimed there was “no deliberate ignoring” of Ms Ingersole, that if he needed to speak to her he did so, that he never changed his attitude to her and that it was “not a matter of shooting the messenger”.
I accept that from the perspective of Ms Ingersole, Mr Allsop and Mr Muter an observable “coolness” in personal interactions between Mr Geraghty and Ms Ingersole was apparent. However it has not been established that Mr Geraghty’s attitude amounted to hostility to Ms Ingersole. The evidence of her subsequent involvement in committees and attendance at functions and the email communications with Mr Geraghty are to the contrary. The absence of praise for her involvement in charity days is to be seen in light of the evidence about the 2010 auction discussed below. Insofar as Ms Ingersole now appears to contend that Mr Geraghty’s reasons for her 2012 dismissal and the manner in which it occurred relate back to the two tee incident, there is no allegation that the Club took adverse action against Ms Ingersole in 2012 for reasons that included any exercise of workplace rights by her in May 2009. The Applicant’s contention that this event otherwise informed Mr Geraghty’s attitude to her and his action in 2012 is considered below.
October 2009 Changes
Mr Allsop did not stand for re-election to the Board of the Club in October 2009. Mr Muter remained a director. Mr Geraghty became President of the Club. At his first Board meeting as President, Mr Geraghty advised he had instructed the CEO that Ms Ingersole was no longer to attend Board meetings. I accept Mr Muter’s evidence that Mr Geraghty also stated that he had formed the view that Ms Ingersole was an influence on members of the Board. Mr Muter indicated his disagreement. Mr Geraghty instructed the CEO to take minutes in the future and to complete draft minutes for distribution. Mr Muter did not regard it as efficient or appropriate for the CEO to perform this task. However cl.77 of the Club’s Constitution requires the Secretary (that is, the CEO) to keep Board minutes. Insofar as the Applicant may have intended to assert that Mr Geraghty’s attitude to her in 2012 was apparent in this action, this is also discussed below. Again, there is no evidence of any relevant exercise of workplace rights by Ms Ingersole at this time.
In December 2009 Mr Geraghty, as President of the Club, met with the CEO, Mr Fraser, to discuss job descriptions and key performance indicators and expressed a need to look at roles and responsibilities for all staff.
Events of 2010
In May 2010 Mr Fraser sent a proposed updated position description for the administration manager to Ms Ingersole to check whether it was accurate and if there were any alterations she wanted to make. She made what she described as “a couple of minor changes”. The position description was finalised by Mr Fraser in August 2010. There is no evidence from Mr Fraser as to the circumstances in which this occurred. Nor is any issue raised about whether these particular circumstances involved the exercise of workplace rights by Ms Ingersole.
Mr Geraghty’s evidence is that he recalled various discussions with members of the Board in July to August 2010 about the Club’s excessive salary costs and under-utilisation of staff members. Mr Muter gave evidence of a meeting with Mr Geraghty and another Board member (Mr Hayton) on 6 August 2010 at which he claimed he was told that in July 2010 the Executive Remuneration Committee had agreed to make Ms Ingersole redundant if Mr Muter and Mr Hayton agreed. Mr Geraghty did not recall that he had said that to Mr Muter and Mr Hayton but agreed that it was possible that he had.
The Minutes of the Executive Remuneration Committee meeting of 20 July 2010 record a discussion of what were described as behavioural matters and approaches by staff to Mr Geraghty about their treatment by the CEO and by Ms Ingersole, as well as a consideration of whether the Club management had the right structure, roles and responsibilities. The Minutes also record discussion about the contract, performance and remuneration of the CEO, the need for a greater level of performance from and expansion of the role of the CEO and the fact that as a result positions may need to change or be made redundant. The issue of the possible redundancy of the position of administration manager was considered at the Remuneration Committee meeting, albeit in the context of considering the role and remuneration of the CEO.
The Remuneration Committee’s role related to remuneration of the CEO. Given that staff redundancies were matters for the Board, while I accept that, as the Minutes record, there was a discussion of the possibility of making the position of administration manager redundant at the Remuneration Committee meeting, I am not satisfied that the Remuneration Committee had made such a decision, as distinct from being of the view that such a redundancy should be considered. Consistent with this position, and the need for a decision by the Board in relation to any staff redundancy, Mr Muter stated that he wanted to hear from the other directors.
A Special Board meeting was held on 10 August 2010 to discuss the outcome of the Remuneration Committee meeting in relation to the CEO’s package and responsibilities and the possible need for position changes or redundancies. Again this highlights the fact that such matters were for the Board to decide. Mr Fraser did not attend this meeting. The Minutes record discussion of the need for greater performance from and an expanded role for the CEO and the possible implications for other staff positions. It was agreed that the President and Vice-President would advise the CEO that the Board sought a higher level of performance and direct responsibility from him and that he was to consider the overall management structure and the roles and responsibilities of management staff, including the possibility that positions and roles may need to be made redundant or change. The Board decided that the CEO was to prepare a Management Plan prior to the September 2010 Board meeting.
At the August 2010 Board meeting held on 25 August 2010. Mr Muter addressed the Board (in the absence of the CEO) about his doubts regarding any redundancy process. He suggested that legal advice, the support of the CEO and a formal board meeting at which all members of the Board should be present and discussions recorded and minuted would be necessary.
The Auction Issue
Ms Ingersole and Mr Muter gave evidence about Mr Geraghty’s response to Ms Ingersole’s action on 26 August 2010 in arranging the sale of a prize that was not sold at a Club charity auction on 25 August 2010. The prize was sold to a Club staff member at the same price that Ms Ingersole had paid for another such item in the auction. Mr Muter’s evidence is that the member who donated the prize complained. The issue was considered at the Board meeting on 30 September 2010. Mr Geraghty expressed disapproval ofMs Ingersole’s actions and suggested that she should be disciplined or counselled and the incident noted in her personnel file.
The Minutes of the Board meeting of 30 September 2010 record that Mr Geraghty requested that his view be included in the Minutes. The majority of the Board concluded that during the auction Ms Ingersole had acted on the CEO’s directions in withdrawing the item in question from the auction and that there was no intentional wrongdoing on her part. It was however resolved that staff would not be allowed to bid on items at future Club auctions and that reserve prices would be set for all items. There is no evidence that Ms Ingersole exercised or proposed to exercise workplace rights at this time. The relevance of this incident to Mr Geraghty’s motivation in 2012 is also discussed below.
The Management Plan
As required by the Board, Mr Fraser prepared a Management Plan in 2010. He showed a copy to Ms Ingersole. The Plan suggested that no position should be made redundant and that the Club was understaffed. The Plan opposed making the position of administration manager redundant and suggested that it had expanded significantly. The Management Plan was presented to the Board Meeting of 30 September 2010.
Mr Geraghty’s view was that Mr Fraser had consulted with Ms Ingersole about certain aspects of the Plan and that she had assisted him with its preparation (given her past role in preparing documents for Mr Fraser using Microsoft Word and Microsoft Excel programs of which Mr Fraser had limited knowledge). He has no direct knowledge in this respect. There is no evidence from Mr Fraser. Ms Ingersole denied assisting Mr Fraser in preparing the Management Plan or being consulted by Mr Fraser about any aspect of the Management Plan but agreed that Mr Fraser had shown her the Plan. However, it is pleaded that in 2010 the CEO took action to investigate the justification for any redundancy including consulting, notifying and discussing the proposal with Ms Ingersole. Whether or not Ms Ingersole was involved in preparation of the Management Plan, it is not in dispute that in 2010 she was consulted, notified of and included in discussion in relation to the possibility that her position would be made redundant.
According to Mr Geraghty, at the September 2010 Board meeting another Board member raised the need for more financial detail to justify proposed staff expansion suggested in the Plan. Mr Geraghty suggested that comparative information should be obtained from other clubs. Mr Fraser indicated that he could not get information from other clubs regarding remuneration of CEOs, their roles and responsibilities and remuneration of other management as such information was confidential. The Board resolved that Board members should report their feedback on the Management Plan to Mr Fraser. Mr Geraghty did so.
The events of 2010 are relied on by the Applicant in support of the propositions that when Ms Ingersole exercised workplace rights and/or there was consultation with her, proposed action against her did not proceed and that part of the reason for the 2012 adverse action was that she had exercised or proposed to exercise workplace rights in the past. These issues are discussed below.
Board Changes in October 2010
In October 2010 Mr Geraghty ceased to be President. He did not stand for re-election as a member of the Board for the year from October 2010.
Mr Allsop again became President. The Minutes of the Board meeting of 21 October 2010 are in evidence. They make no reference to the Management Plan or to comments on the Plan. Mr Allsop’s evidence is that a biennial “bench marking summary” conducted in 2010 while he was not a member of the Board showed the Club was run efficiently and was not overstaffed. He did not think the Club required any management structure changes. There is no evidence of any 2010 report other than the Management Plan (which refers to “benchmarking” issues”). I accept that this was the report to which Mr Allsop referred. While Mr Allsop was President, Ms Ingersole again attended Board meetings.
Board Changes in October 2011
In October 2011 Mr Geraghty again became President of the Club. Mr Allsop and Mr Muter ceased to be members of the Board. Mr Moore became Vice-President, Mr Dakin and Ms Michel became Board members. There were three other members of the Board who were not witnesses in these proceedings.
Events leading up to the Board Meeting on 29 February 2012
On 13 January 2012 the CEO, Mr Fraser, suffered an aneurysm. He subsequently had brain surgery. He was on sick leave from 13 January 2012 to 2 May 2012.
As staff were informed by email, during Mr Fraser’s absence Mr Duncan Walker (the operations manager) acted as a “conduit” between the Board and the staff. Ms Ingersole was aware that Mr Walker was to act as a conduit.
On 22 February 2012 Mr Geraghty, Ms Michel, Mr Moore and one other member of the Board (Mr Moynihan, the Treasurer) attended a Finance Sub-Committee meeting at which the Financial Reports to the end of January 2012 were considered.
On the evening of 29 February 2012 a Club Board meeting was held which was attended by Mr Geraghty as President and Chairman, Mr Moore, Mr Moynihan, Mr Verdon and Mr Kelly, Ms Michel and Mr Dakin. Mr Walker was initially in attendance at the meeting.
The Minutes of the meeting record that Mr Geraghty asked Mr Walker to leave the meeting prior to discussion of general business. Under the heading “General Business” the Minutes of the meeting record:
David Geraghty advised the meeting that the club’s operating result of a loss of $219,000 (prior to below the line items) was grossly unacceptable, and that the measures on cost cutting decided at the last board meeting and finance meeting (re ceasing free chips and nuts) were merely tinkering around the edges, and some tough decisions needed to be made to trim our costs. Mr Geraghty noted that entrance fees were thought of historically as funds to be set aside for future capital works however they have been used to prop up the operating costs of the club and mask the real operating result. Mr Geraghty also commented that we are looking at significant capital outlays in the years ahead ie electricity upgrade, greens shed and clubhouse roof and we as a Board need to be mindful of that when reviewing our operating costs.
Mr Geraghty commented that the club is incurring exceptionally high management salary costs and that the Club cannot/should not continue to incur such costs. Mr Geraghty proposed a restructure of the staffing levels of the club. As part of the proposed restructure, the positions of Administration Manager and Events Coordinator would be made redundant. Mr Geraghty stated that the estimated annual saving to the club of making the respective positions redundant would be as follows: Administration Manager – $108,000, and Events Coordinator – $69,000 inclusive of on costs. There would be a one-off costs to the club in paying out notice periods and redundancy entitlements however those would be outweighed by the ongoing annual savings (Admin Manager – $31,000, Events Manager – $11,000). All other entitlements would be paid and offset against existing provisions and accordingly would have no impact on the P&L.
Mr Geraghty proposed that the following reporting changes occur as part of the restructure:
House Manager – rename Operations Manager
Receptionist – reports to Financial Accountant
Golf Office administrator – reports to Head Professional
Golf Office Assistant – reports to Head professional
Functions supervisor – role expanded to include organising and promoting events and continue to report to the House/Operations Manager.
Mr Geraghty proposed that the Administration Managers position be made redundant with immediate effect (ie tomorrow – 1st March 2012) and that the Events Coordinators position be made redundant with immediate effect on 30th March 2012.
Mr Geraghty advised the Board that, due to previous leaks of Board discussions, he was only going to raise this proposal once. Mr Geraghty commented that due to the deplorable weather conditions in February to date, he expected the financial results to look even worse and that now was the time to make harsh decisions concerning the clubs financial future. Mr Geraghty reminded the Board members of their fiduciary duty to look after the members interests and invited comments on the proposal prior to it being voted upon.
Following discussion on the matter by all board members, it was agreed by a majority of 4:3, (Paul Moynihan requested his vote against the proposal be minuted) that the restructure be approved and that the Administration Manager’s position be made redundant effective 1st March 2012 and that the Event Coordinators position be made redundant effective 30th March 2012There being no further business the meeting was declared closed at 8.45 pm
In fact as recorded in the Club’s Income and Expenditure Statement for January 2012 and as Mr Geraghty stated that he put to the Board meeting on 29 February 2012, the operating loss to January 2012 was $228,000. $219,097 was the budgeted loss.
Each of the Board members who voted for the redundancy resolution gave evidence as to what was said at this meeting and their reasons for voting for the resolution. Their accounts of what was said at the meeting were broadly consistent and provide some elaboration on what was recorded in the Minutes. There is no evidence to the contrary. Each attested that Mr Geraghty referred to continuing and worsening losses in circumstances where there was a need for capital expenditure. He suggested that the Club had to do something about what was variously described as “saving money”, “trimming overheads” or “reducing overheads in an effort to reduce operating losses” or “improving the financial position” of the Club. Mr Geraghty proposed a restructure of management staffing whereby the administration manager’s position would be made redundant immediately and the Event Coordinator’s position made redundant from 30 March 2012. He advised that this would save about $108,000 per annum in relation to the administration manager’s role and $69,000 for the event coordinator’s role.
Mr Moore supported the motion put by Mr Geraghty. He recalled that at the meeting he had referred to his experience that it was not appropriate for a business to be suffering such a loss not to restructure its affairs, to the need to do more than just remove chips and nuts (a Finance Committee proposal which Mr Geraghty had described as “just tinkering around the edges” according to Mr Dakin and Mr Moore) and to the fact that members would want the Club to make savings.
Mr Dakin also spoke in support of the proposal, indicating that in his experience as a chief financial officer and chief operating officer serious action must be taken immediately and without delay, that they had to save money and reduce expenditure, that businesses could not support “huge wage costs” or “such overheads” when their financial position was in “dire straits” (or in “times of crisis”) and that he would undertake such a restructure in his then employment (as chief operating officer of a medical research facility) in such a situation. He was in favour of the restructure.
According to these witnesses, Mr Moynihan stated that he did not support the motion but, when asked by Mr Moore, had no other suggestions.
Ms Michel also indicated her support for such a restructure. She observed that “trimming the edges” would not suffice and suggested that there was a need to “tackle this issue head on”, to save money and to reduce expenditure. Her recollection is that she also said she had thought about other options, but that restructure was the only option that would make headway in turning the Club around.
According to the evidence of the Board Members, Mr Kelly indicated that he thought that input from the CEO would be appropriate before voting for a restructure. Mr Moore pointed out that they did not know when or if Mr Fraser would return and suggested the matter could not be put on hold. There is no evidence that Mr Verdon said anything in relation to the proposal.
Messrs Kelly, Moynihan and Verdon voted against the redundancy resolution.
Mr Geraghty, Mr Moore, Ms Michel and Mr Dakin voted in favour of the resolution. Accordingly it passed by majority.
Prior to 1 March 2012 there were no relevant discussions in 2012 with Ms Ingersole in relation to her possible redundancy or pursuant to any workplace rights that she might have.
After the Board meeting on 29 February 2012 Mr Geraghty and Mr Moore informed Mr Walker of the redundancy resolution and asked him to attend a meeting the next morning to inform Ms Ingersole that her role had been made redundant, that there were no other suitable positions for her within the Club and that the Club would assist her with recruitment services free of charge to help her find alternative employment and to advise her about what she would be paid on
Ms Ingersole, Mr Walker, Mr Geraghty and Mr Moore all gave evidence about events on 1 March 2012. Relevantly, Mr Moore and Mr Geraghty were in the boardroom when Mr Walker went to ask Ms Ingersole to attend a meeting. Insofar as Ms Ingersole takes issue with the capacity in which he did so, it is not in dispute that Mr Geraghty sent an email to all staff members advising that Mr Walker would be a conduit between the board and the staff in the absence of Mr Fraser.
As to the precise words used by Mr Walker in asking Ms Ingersole to attend the boardroom, it is clear on either account that Mr Walker communicated to Ms Ingersole that her presence was required in the boardroom and that he advised her that Mr Geraghty and Mr Moore were in the boardroom. Ms Ingersole acted in a way that appeared to demonstrate some reluctance to proceed to the boardroom for a meeting. On her own evidence, when asked (or told) to attend the boardroom for a meeting she walked in the direction of her office, telling Mr Walker than she needed a pen and notebook, and then started to turn on her computer. She then went upstairs to get a coffee (accompanied by Mr Walker). She claimed that because of her anxiety about the meeting she returned to her office. Mr Walker followed her. She picked up her phone. When Mr Walker told her to put the phone down, Ms Ingersole walked out of her office and into Mr Fraser’s office and locked the door. On her evidence she then telephoned Mr Fraser and expressed concern that she did not know what was going on, but did not feel good about it. Meanwhile, Mr Walker returned to the boardroom and informed Mr Geraghty and Mr Moore that Ms Ingersole would not come to the boardroom, that she had wanted to make phone calls, that he had asked her if this could wait, that she said it could not and that she had ignored him and she was talking on the phone. Mr Geraghty said that they would go with him and ask Ms Ingersole to come to the boardroom. Subsequently Mr Walker unlocked Mr Fraser’s office door. A conversation took place between Mr Geraghty and Ms Ingersole in which Ms Ingersole indicated that she had not started work and Mr Geraghty said that if she was not working she should get off Club property to make the call. While there is some difference in the recollection of this conversation I am satisfied on the evidence of Mr Moore and Mr Walker that Ms Ingersole indicated that she had not started work. Ms Ingersole left the building and again telephoned Mr Fraser.
After Ms Ingersole returned to the Clubhouse, Mr Walker asked her if she was able to join them in the boardroom. She stated that she would get herself a cup of coffee first, then that she needed to get something from the office and then that she wanted to go to the toilet and return to her office before proceeding to the boardroom. As both Ms Ingersole and Mr Walker attested, she asked if it was the sort of meeting at which she was entitled to have a representative and Mr Geraghty attested that he had answered no.
When Ms Ingersole and Mr Walker arrived in the boardroom, Mr Walker informed Ms Ingersole that her position had been made redundant effective immediately. Ms Ingersole’s evidence (consistent with Mr Walker’s evidence that he had written down in advance what he had to say) is that Mr Walker continued reading from a document advising her of her statutory entitlements, that the Club would assist her to gain alternative employment, that she would be paid in lieu of notice and that she was to hand in her keys and leave that day. Mr Geraghty also informed her that it was an operational decision, that the Club was “not tracking financially” and that it was not personal.
I accept Mr Walker’s evidence about the matters canvassed in the meeting with Ms Ingersole, including that she asked about re-deployment and that Mr Geraghty indicated that no other suitable positions for her existed. Mr Walker told her that the Club would meet the cost of a recruitment firm to assist her in finding re-employment. When she indicated that it sounded like a termination and not a redundancy, Mr Walker indicated that it was a redundancy, not a termination. Ms Ingersole asked if it was a unanimous decision and was told by Mr Geraghty that the Board was not required to pass on that information and that the decision of the Board was by majority vote. She asked to work out the four week notice period but was told by Mr Walker that this was not necessary.
Whether in that conversation or thereafter, there was a discussion between Mr Walker and Ms Ingersole on 1 March 2012 about whether or not she would receive something in writing. He indicated to her that the details would be confirmed in a letter to be sent by certified mail by close of business that day. Mr Walker also told her that he required her keys, the password for her computer and any Club materials and told her that he wanted to accompany her to her office so that she could collect her personal belongings.
Mr Walker’s evidence is that he was instructed to accompany Ms Ingersole to her desk after the meeting to collect her personal belongings. Mr Geraghty explained to Mr Walker that it was necessary for him to do this as it was not appropriate for the Board to communicate with staff directly and the CEO was absent.
When Mr Walker accompanied Ms Ingersole to her office she swore at him. I accept that he asked her (or told her) not to access her computer and told her he had been directed to stay with her. He offered her boxes for her belongings (which she accepted) and to telephone the Mr Fraser to help her emotionally (which she declined). However she subsequently telephoned Mr Fraser in Mr Walker’s presence. Mr Fraser also spoke to Mr Walker and Mr Geraghty and was told of the redundancy resolution. On Ms Ingersole’s evidence she again telephoned Mr Fraser after she left the Club premises and went to his home to discuss the matter. Ms Ingersole left the Club premises at about 10:00 am after she had completed collecting her belongings.
On the afternoon of 1 March 2012 the Club sent Ms Ingersole a letter by registered mail notifying her of her termination due to redundancy. The letter advised that her position would become redundant effective 28 March 2012. However it also stated that the Club did not require her to work out her notice period, that her notice period would be paid out to her on termination of her employment and that her last day of employment with the Club would be on 1 March 2012. She was provided with a schedule of her estimated monetary entitlements to be deposited into her bank account by close of business on 1 March 2012 in a total amount of $64,387.21. This amount included payment of four weeks’ salary in lieu of notice, annual leave and leave loading, accrued time in lieu of additional days worked, accrued long service leave, outstanding salary allowances and 16 weeks redundancy pay.
Ms Ingersole’s evidence is that to the best of her recollection she received the letter dated 1 March 2012 after she received a subsequent letter notifying her of her redundancy dated 6 March 2012. I accept this evidence insofar as it is consistent with Ms Turner’s evidence that a fresh letter of notification was hand-delivered to Ms Ingersole on 6 March 2012 and that the first letter was not collected from the post office until 13 March 2012.
The Adverse Action Claim
Ms Ingersole contended that the Club took adverse action against her in breach of s.340(1) the Act. This claim relates not only to her dismissal but also to the circumstances in which she was dismissed from her employment on the grounds of redundancy. Section 340(1) of the Act is as follows:
(1) A person must not take adverse action against another person:
(a) because the other person:
(i) has a workplace right; or
(ii) has, or has not, exercised a workplace right; or
(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
(b) to prevent the exercise of a workplace right by the other person.
Workplace right is defined in s.341 of the Act which provides:
(1) A person has a workplace right if the person:
(a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or
(b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or
(c) is able to make a complaint or inquiry:
(i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
(ii) if the person is an employee--in relation to his or her employment.
Under s.342(1) of the Act adverse action is taken by an employer against an employee in specified circumstances, relevantly if the employer:
(a) dismisses the employee; or
(b) injures the employee in his or her employment; or
(c) alters the position of the employee to the employee's prejudice; or
(d) discriminates between the employee other employees of the employer.
Section 360 of the Act provides that “a person takes action for a particular reason if the reasons for the action include that reason.” Section 361(1) (the so-called “reverse onus” provision) is as follows:
(1) If:
(a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b) taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed, in proceedings arising from the application, that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
It was asserted that “at all material times” the Applicant had workplace rights pursuant to s.341(1)(a), and/or (b) and/or (c)(ii) of the Act to be notified or consulted or to discuss any “definite decision” within cl.8 of the Award, to participate in a dispute resolution process under cl.9 of the Award and to make a complaint or inquiry in relation to her employment.
These asserted rights are of two kinds. First, Ms Ingersole claimed to have a right to be able to make a complaint or inquiry to her employer in relation to her employment. It was submitted that she had a right to complain or inquire about any “proposal” to terminate her employment on the grounds of purported redundancy or otherwise.
Secondly, Ms Ingersole also claimed to have workplace rights under the Award, in particular to be able to be consulted and notified and to initiate or participate in a process or proceeding under cl.8 of the Award whereby she might be able to have the benefit of discussions with the Club as contemplated by cl.8.2 of the Award. As discussed below, such rights were said to include a right to initiate or participate in such a process in relation to any decision or proposal to terminate her employment on proposed grounds of redundancy.
The Applicant submitted that there was a Club “proposal” to terminate her position and also that of another named employee on purported grounds of redundancy and that in the circumstances of the relatively small workforce of five administrative staff, this clearly came within the meaning of “major workplace change” in cl.8 of the Award. However there was said to have been no relevant notification or discussion.
Insofar as the Respondent asserted there was notification or discussion in the context of proposals to terminate the employment of the Applicant on grounds of redundancy in 2010, it was submitted that the 2010 notification or discussion was inadequate in relation to the events of 2012.
It was also contended that Ms Ingersole had a workplace right to be able to participate in a dispute resolution process as provided for by cl.9 of the Award. It was submitted that this included, relevantly, a right to undertake or take part in such a process about any decision or proposal to terminate her employment on purported grounds of redundancy or otherwise.
The Applicant tendered extracts from the Award in support of this claim and the claim that the Club contravened s.45 of the Act in that it failed to consult with her regarding a definite decision to introduce a major workplace change or breached the dispute resolution procedures in the Award.
Clauses 8 and 9 in the Award appear under the heading “Consultation and dispute resolution” and are as follows:
(8) Consultation regarding major workplace change.
(8.1) Employer to notify
(a) Where an employer has made a definition to decision to introduce major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the employer must notify the employees who may be affected by the proposed changes and their representatives, if any.
(b) Significant effects include termination of employment; major changers in the composition, operation or size of the employer’s workforce or in the skills required; the elimination or diminution of job opportunities, promotional opportunities or job tenure; the alteration of hours of work; the need for retraining or transfer of employees to other work or locations; and the restructuring of jobs. Provided that where the Award makes provision for alteration of any of these matters and alteration is deemed not to have significant effect.
(8.2) Employer to discuss change.
(a) The employer must discuss with the employees affected and their representatives, if any, the introduction of the changes referred to in clause 8.1, the effects the changes are likely to have on employees and measures to avert or mitigate the adverse effects of such changes on employees and must give prompt consideration to matters raised by the employees and/or their representatives in relation to the change.
(b) The discussions must commence as early as practicable after a definite decision has been made by the employer to make the changes referred to in clause 8.1.
(c) For the purposes of such discussion, the employer must provide in writing to the employees concerned and their representatives, if any, all relevant information about the changes including nature of the changes proposed, the expected effects of the changes on employees and any other matters likely to affect employees provided that no employer is required to disclose confidential information the disclosure of which would be contrary to the employer’s interests.
(9) Dispute resolution
(9.1) In the event of a dispute about a matter under this award, or a dispute in relation to the NES, in the first instance the parties must attempt to resolve the matter at the workplace by discussions between the employee or employees concerned and the relevant supervisors. If such discussions do not resolve the dispute, the parties will endeavour to resolve the dispute in a timely manner by discussions between the employee or employees concerned and more senior levels of management as appropriate.
(9.2) If a dispute about a matter arising under this award or a dispute in relation to the NES is unable to be resolved at the workplace, and all appropriate steps under clause 9.1 have been taken, a party to the dispute may refer the dispute to Fair Work Australia.
(9.3) The parties may agree on the process to be utilised by Fair Work Australia including mediation, conciliation and consent arbitration.
In the Amended Statement of Claim it was contended that “on 1 March 2012” the Club took adverse action against Ms Ingersole. The particulars include both the fact of her dismissal from employment on that day on the grounds of redundancy and, in addition, address the manner and circumstances of that dismissal. Apart from the dismissal, the Respondent was said to have injured Ms Ingersole in her employment and/or altered her position to her prejudice by:
The Respondent injured the Applicant in her employment and/or altered the Applicant’s position to her prejudice by:
(i) dismissing the Applicant from her employment without any notice or warning; and/or
(ii) Refusing or failing to consult or notify the Applicant about any decision the Club had made to introduce major change in organisation or structure that was likely to include termination of her employment; and/or
(iii) Dismissing the Applicant from her employment in a way that was peremptory including arrangement that she be immediately escorted from the Respondent’s premises, with directions that she not be allowed to speak to any other employee or board member of the Respondent before leaving; and/or
(iv) Dismissing the Applicant from her employments without allowing her to participate in a dispute resolution process.
The Applicant’s contention is that an operative reason for the Club acting in the way it did on 1 March 2012 was to prevent her from exercising one or more of her workplace rights, in particular to prevent her from exercising such rights with a view to changing or ameliorating the effect of the redundancy proposal or decision or because she had such rights or because she had or proposed to exercise such rights in the past.
The particulars in support of this claim assert that in or about August 2010 there had been a proposal by certain board members (in submissions said to have been led by Mr Geraghty in his then capacity as President of the Club) to make the Applicant redundant. It was said that other Board members and/or the CEO, Mr Fraser, took action to investigate the justification for any redundancy, including notifying, consulting, and discussing the proposal with Ms Ingersole and that the Club then determined there was no need for such redundancy to proceed. It was submitted that this was at least substantially because of input from and recommendations by club officers, including the CEO and Mr Muter, who was then a Board member. However, it was submitted that insofar as there had been a proposal for major workplace change made in September 2010 any claimed notification and consultation with the Applicant in that respect was not adequate in relation to the events of 2012.
The Applicant contended that when the Club took adverse action in 2012 there was no notification, consultation or discussion with her in relation to any decision to introduce what was said to be a major change likely to have significant effects on her employment and no notification or warning of the Club’s intention to terminate her employment.
It was pleaded that such alleged adverse action was taken in circumstances where the CEO, to whom Ms Ingersole was able to make a complaint or inquiry, was not advised of the decision and was on leave and that the Club knew or ought to have known that Mr Fraser would have advocated compliance with cl.8 before the adverse action was taken. The Applicant also contended that the Club knew or ought to have known that if there had been consultation, notification and/or discussion about the major change, then the decision to terminate Ms Ingersole’s employment on the grounds of redundancy “would likely have been obviated”. Reference was also made to what was said to be the peremptory manner of the dismissal.
In these circumstances the Applicant submitted that, whether or not her position was genuinely redundant, s.340 would be enlivened because the reasons for the adverse action included a prohibited reason and under s.361 of the Act the posited reasons were to be presumed unless the Respondent proved otherwise.
The Club submitted that Ms Ingersole’s workplace rights were more confined than suggested. In particular it was contended that insofar as the Applicant relied on rights under the Award said to arise upon “a proposal” to terminate her employment on purported grounds of redundancy, the obligation to consult under cl.8 of the Award arose only once a “definite decision” was taken to introduce “major change”. It was submitted that the “decision” in this context was the decision taken by the Board on 29 February 2012 to make the Applicant’s position redundant and that there was no obligation to consult in relation to that decision until after it was made. There was said to have been the requisite notification of and consultation with Ms Ingersole about implementation of the decision in the meeting on 1 March 2012.
The Club also submitted that there was no evidence that Ms Ingersole ever took steps to invoke the dispute resolution process in cl.9 of the Award and that nothing in the Club’s actions precluded the exercise of such rights.
Insofar as the Applicant took issue with what was said to be the peremptory manner and circumstances of her dismissal, the Club submitted that her assertions were not supported by the evidence and that there was no workplace right clearly identified as being infringed or a motivating factor in respect of this particular.
The Club submitted that notwithstanding the s.361 presumption, it was for an Applicant to make out the allegations of adverse action and that except in relation to the fact of dismissal she had not done so. It was also submitted that the asserted reasons for the alleged adverse action did not accord with Ms Ingersole’s evidence that Mr Geraghty was motivated by a claimed interaction with her concerning a 2009 Board decision about two tee starts on Sundays, which clearly did not involve the exercise of a workplace right.
In any event, the Club submitted that the evidence established that those on the Board who voted for the redundancy resolution (who were said to be the relevant decision-makers) each had the financial position of the Club as his or her real reason for such decision. It was submitted that the Respondent had discharged any s.361 onus to establish that the decision of 29 February 2012 and any actions of 1 March 2012 that constituted adverse action were not taken for a prohibited reason.
Consideration of the adverse action claim
Section 340 is in Part 3.1 of the Act. It proscribes taking action against a person “because” that person has or had a workplace right or for one of the other specified reasons associated with the exercise or proposed exercise of a workplace right by that person. An object of this Part of the Act is to protect workplace rights and to provide “effective” relief to those adversely affected by reason of holding or exercising such rights (see s.336). The Applicant must establish objectively that she had the asserted workplace right and that adverse action was taken against her (see Wolfe v Australia and New Zealand Banking Group Limited [2013] FMCA 65 at [72]). It is then presumed, unless the Respondent proves otherwise, that the alleged adverse action was taken for the asserted prohibited reason (see ss.360 and 361).
The requirement that the Applicant establish matters objectively means that she must first:
…prove the existence of objective facts which are said to provide a basis for the alleged adverse action, before the onus shifts to the employer in respect of the prohibited reason…It is not sufficient for [the Applicant] to simply allege that she had a workplace right and that she was the subject of adverse action – rather on the assumption that [the Applicant] is able to prove these allegations, the burden is then cast on to [the Respondent] to prove that adverse action was not taken against [the Applicant] because of her workplace right for the purposes of s340 and s361 of the Act”Jones v Queensland Tertiary Admissions Centre Ltd (No.2) (2010) 186 FCR 22; [2010] FCA 399 at [10] per Collier J).
While the contraventions alleged are civil contraventions, the proceedings are penal in nature (see Liquor, Hospitality and Miscellaneous Union v Arnotts Biscuit Ltd (2010) 188 FCR 221; (2010) 198 IR 143; [2010] FCA 770). As Logan J pointed out in Arnotts at [13], subject to the operation of ss.360 and 361, the Applicant carries the burden of proving the alleged contraventions on the balance of probabilities with due regard being given to the matters in s.140(2) of the Evidence Act 1995 (Cth).
Workplace Rights
The Applicant asserted that she had the ability to make a complaint or an inquiry in relation to her employment within s.341(1)(c)(ii) of the Act. As Katzmann J stated in Construction, Forestry, Mining & Energy Union v Pilbara Iron Company (Services) Pty Ltd (No.3) [2012] FCA 697 (at [64]) under s.340(1)(c)(ii) the relationship between the complaint or inquiry and the employee’s employment may “be direct or indirect” and the words should be interpreted broadly having regard to the nature and purpose of the legislation, including the protection of workplace rights. It is not necessary that the right to make a complaint or inquiry arise from an express provision in an applicable Award. Nor, as the Explanatory Memorandum to the Act makes clear (and see Begley v Austin Health [2013] FMCA 68 at [368]), is it a prerequisite that the employee has recourse to a competent administrative authority. It was not disputed that this provision extends to situations where an employee makes or has a right to make an inquiry or complaint to his or her employer in relation to his or her employment.
The evidence of the Board Members who voted in favour of the redundancy resolution satisfies me that they, as the directing mind and will of the Club, did not take adverse action against Ms Ingersole for a prohibited reason. They each gave evidence, which I accept, that the reason they each voted in favour of the proposal was because of the financial circumstances of the Club. The witnesses were unshaken on that aspect of their evidence. It was also plain on the evidence of these witnesses that a decision of the Board could not be taken for granted.
There is no basis for suggesting that independently-minded Board members, each with substantial corporate experience, who clearly took their responsibilities as directors seriously, were merely ciphers and that Mr Geraghty was the directing mind and will of the Club, or that they had each in some way prejudged the outcome of a meeting of the Board, or that the manner in which the Applicant was dismissed from her employment on the grounds of redundancy was for a purpose that included a prohibited purpose that related to the fact that she had or had exercised workplace rights or to prevent her exercising workplace rights.
Moreover there was evidence before the Board (and before the Court) supportive of their views in relation to the financial position of the Club. It is not to the point that former members of the Board or those who voted against the proposal would or may have taken a different view as to the appropriate response, if any, to the financial situation of the Club.
What is in issue is whether a proscribed reason was an operative reason for the decision-makers taking adverse action and the manner in which that occurred, not whether or not those reasons were, objectively, right or wrong (see Barclay). Having regard to such evidence as there is in relation to the Club’s financial situation that was considered by the Board members, the views of Mr Allsop and Mr Muter in relation to the financial viability of the Club do not amount to contradictory evidence or proof of objective factors contradicting the evidence of the decision-makers.
Insofar as issue was taken with the circumstances leading up to the redundancy resolution, it is the case that some individual Board members formed the view that Ms Ingersole’s position should be made redundant before the Board Meeting on 29 February 2012. Mr Geraghty was of this view. Ms Michel individually came to the same view in her own mind. There was a discussion between Mr Geraghty and Mr Moore prior to the Board Meeting of 29 February 2012 at which the redundancies of the administration manager’s position and the event coordinator’s position were canvassed.
However the fact that Mr Geraghty was of this view and that some of the other directors had themselves formed the view that such action would be appropriate, has to be seen in light of the fact that there could be no redundancy until there was a decision to this effect by a majority of the Board members in favour of the redundancy. As discussed above, it has not been established that a “definite decision” had been made by the four members of the Board who ultimately voted for this proposal prior to the meeting of 29 February 2012. Nor does the evidence establish that any prior secretive plan amounting to adverse action was made among the Board members.
The Respondent has discharged the onus on it under s.361 of the Act. It has demonstrated that it did not take the adverse action of dismissal of the Applicant for a proscribed reason or for reasons that included a proscribed reason.
Hence this part of the Applicant’s adverse action claim is not made out.
It was asserted that the Applicant was dismissed without any notice or warning. As discussed above this claim was not made out. Ms Ingersole was given notice in a meeting on 1 March 2012. More generally, I accept the explanation that Mr Geraghty and the other Board members gave for not informing Ms Ingersole of any proposal to make her redundant before it was voted on by the Board. There was, in any event, no obligation to inform her of any such proposal.
The Club did not refuse or fail to consult Ms Ingersole about the decision it made to introduce major changes, which was the decision to make her redundant. As discussed above, she was consulted and notified in the sense required under cl.8 of the Award in the meeting on 1 March 2012.
There was also said to be a peremptory dismissal on 1 March 2012, after the Board Meeting on 29 February 2012 Mr Geraghty and Mr Moore had a discussion with Mr Walker in which he was informed he would have to notify Ms Ingersole the next day. His account of what occurred on 1 March 2012 and that of Ms Ingersole do not support the claimed adverse action. To the extent that the manner in which Ms Ingersole was advised of her redundancy and what occurred thereafter could be characterised in any sense as “peremptory”, it has not been established that what occurred went so far as to injure the Applicant in her employment or alter her employment position to her prejudice within s.342 of the Act.
The Applicant did not maintain the contention that she was not allowed to participate in a dispute resolution process. The adverse action claim is not made out.
Breach of section 45 of the Fair Work Act 2009
The Applicant also contended that the Respondent failed to comply with the provisions of cl.8 of the Act and in so doing contravened a term of the Award in breach of s.45 of the Act.
However, as discussed in detail above, cl.8 of the Award only imposed a duty to consult once a relevant “definite decision” had been made as is clear from cl.8.2(b). As the Respondent submitted, the obligations under cl.8 direct attention to the nature of the decision in issue. In this case the decision was the decision by the Board of 29 February 2012 to make the position occupied by the Applicant redundant. No obligation to consult arose in relation to that decision until the definite decision had been made. The obligation under cl.8 is not an obligation to discuss proposals. Nor is it an obligation on individual directors to discuss with the Applicant their views, however firm, in advance of a meeting of the Board (cf. the type of clause considered in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Ltd (2010) 198 IR 382; [2010] FCA 591).
It has not been established that the nature of the decision in question was a two-step process of which the first step (whether in the meeting on 29 February 2012 or beforehand) was a decision in relation to organisation or structure in relation to workplace change which activated the cl.8 obligation in anticipation of a second step identifying what positions were to be made redundant. Rather, the only “definite decision” in question was the decision to make the Applicant’s and one other position redundant.
Thus the obligation was to consult about the way in which that definite decision was to be implemented. As discussed above, that was done in the meeting on 1 March 2012 which was at the earliest practicable opportunity after the decision was made. For the reasons set out above it has not been established that there was a failure by the Respondent to comply with the provisions of cl.8 of the Award.
Insofar as it was submitted that the Respondent failed to comply with cl.9 of the Award and by so doing it contravened s.45 of the Act, this has not been made out. There is nothing in the evidence before the Court to support any contention that the Applicant either sought to participate in a dispute resolution process or that the Respondent in any way prevented her or hindered her from doing so or precluded the exercise of such right. No breach of s.45 of the Act has been established.
Sections 44 and 117 of the FW Act
Ms Ingersole also claimed that the Club contravened s.44 of the Act in that it failed to give her the notice required under s.117 of the Act.
Section 44(1) of the Act provides that an employer must not contravene a provision of the National Employment Standard. The National Employment Standards in Part 2-2 of the Act (including s.117) are minimum standards that apply to the employment of employees and cannot be displaced (see s.61(1)).
Section 117 of the Act is relevantly as follows:
Notice specifying day of termination
(1)An employer must not terminate an employee’s employment unless the employer has given the employee written notice of the day of the termination (which cannot be before the day the notice is given).
Note 1. Section 123 describes situations in which this section does not apply.
Note 2. Sections 28A and 29 of the Acts Interpretation Act 1901provide how a notice may be given. In particular, the notice may be given to an employee by:
(a)delivering it personally; or
(b)leaving it at the employee’ last known address; or
(c)sending it by pre-paid post to the employee’s last known address.
Amount of notice or payment in lieu of notice
(2)The employer must not terminate the employee’s employment unless:
(a) the time between giving the notice and the day of the termination is at least the period (the minimum period of notice ) worked out under subsection (3); or
(b) the employer has paid to the employee (or to another person on the employee’s behalf) payment in lieu of notice of at least the amount the employer would have been liable to pay to the employee (or to another person on the employee’s behalf) at the full rate of pay for the hours the employee would have worked had the employment continued until the end of the minimum period of notice.
….
[Subsection 3 provides a method of calculation of the requisite period of notice to be given to an employee based on his or her period of continuous service “at the end of the day the notice is given.”]
Section 28A of the Acts Interpretation Act 1901 (Cth) is as follows:
(1) For the purposes of any Act that requires or permits a document to be served on a person, whether the expression “serve”, “give” or “send” or any other expression is used, then the document may be served:
(a) on a natural person:
(i) by delivering it to the person personally; or
(ii) by leaving it at, or by sending it by prepaid post to, the address of the place of residence or business of the person last known to the person serving the document; or
(b) on a body corporate – by leaving it at, or sending it by prepaid post to, the head office, a registered office or a principal office of the body corporate.
(2) Nothing in subsection (1):
(a) affects the operation affects the operation of any other law of the Commonwealth, or any law of a State or Territory, that authorises the service of a document otherwise than as provided in that subsection; or
(b) affects the power of a court to authorise service of a document otherwise than as provided in that subsection.
Section 29 of the Acts Interpretation Act is headed “Meaning of service by post” and is as follows:
(1) Where an Act authorizes or requires any document to be served by post, whether the expression "serve" or the expression "give" or "send" or any other expression is used, then the service shall be deemed to be effected by properly addressing, prepaying and posting the document as a letter and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.
(2) This section does not affect the operation of section 160 of the Evidence Act 1995.
Under s.160(1) of the Evidence Act, it is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) that a postal article sent by prepaid post addressed to a person at a specified address in Australia was received at that address on the fourth working day after having been posted.
Ms Ingersole did not raise any issue in relation to the minimum period of notice to which she was entitled. Rather, her contention was that the Club failed to comply with s.117(1) of the Act because she was dismissed from her employment on 1 March 2012 but was not “given” written notice of her dismissal until on or after 6 March 2012.
The Respondent did not dispute that s.117 was applicable. However, the Club denied that it contravened s.117(1), primarily on the basis that the letter dated 1 March 2012 sent that day by prepaid post to the Applicant’s last known address, gave written notice to Ms Ingersole on the day of termination by operation of s.28A(1)(a)(ii) of the ActsInterpretation Act 1901 (Cth).
The unchallenged evidence of Ms Turner, the receptionist and membership coordinator for the Club, is that at 16:58 on 1 March 2012 she posted a notification of termination letter addressed to Ms Ingersole dated 1 March 2012 by registered post. There is no issue about the address to which the letter was sent. A delivery confirmation from Australia Post indicates that the letter sent by registered post on 1 March 2012 was collected by or on behalf of Ms Ingersole on 13 March 2012.
Ms Turner also attested to the fact that on or about 6 March 2012 she made arrangements with a courier to courier another copy of the notice of redundancy letter to Ms Ingersole. Annexed to her affidavit was a copy of an invoice from Pack and Seal, Castle Hill stating that this letter was delivered on 6 March 2012. It was signed for by “Libby”.
Ms Ingersole’s evidence is that sometime after 6 March 2012 (to the best of her recollection two or three days after that date), she received two letters in the mail from the Club: one of which, dated 1 March 2012, was the original notification of termination due to redundancy and the other of which, dated 6 March 2012, enclosed a copy of that letter and referred to the fact that while it had been sent to her by registered mail on 1 March 2012, the Club understood that it had not been received. Both letters provided details of the entitlements paid into Ms Ingersole’s bank account on 1 March 2011. Contrary to Ms Ingersole’s recollection, on the basis of Ms Turner’s evidence I accept that the letter of 6 March 2012 was delivered on that date and that the letter of 1 March 2012 was collected on 13 March 2012.
Ms Ingersole contended that the day of her termination was 1 March 2012. She accepted that oral notice was given to her that day and that she was given payment in lieu of notice pursuant to s.117(2) but contended her employment was terminated before she was given written notice of the day of the termination as required under s.117(1) of the Act.
The Applicant submitted that when regard was had to ss.28A and 29 of the Acts Interpretation Act (referred to in Note 2 to s.117(1)), it was apparent that while s.28A allowed for service of a document on a person by sending it by prepaid post to the address of the place of residence of that person, the effect of s.29 was that service by post was not effected until the time that the document would be delivered in the ordinary course of post. It was submitted that by virtue of s.160 of the Evidence Act that would be the fourth working day after posting.
The Applicant accepted that the notice of termination was posted at 16:58 on 1 March 2012 by Sandra Turner. However, it was submitted that the notice was not given to the Applicant until the time at which service by post was deemed to have occurred or she actually received such written notice.
The Respondent submitted that it was not necessary for the purposes of s.117(1) of the Act for the notice to have been received by the employee, that the Club met the requirement to “give” Ms Ingersole written notice at the time the notice was posted and that s.29 of the Acts Interpretation Act was not determinative, as there was nothing in the Fair Work Act that required notice to be effected by a particular date.
In the alternative, counsel for Respondent submitted that as the notice of termination letter gave four weeks’ notice (although it provided for payment in lieu of notice) the day of termination of Ms Ingersole’s employment could be seen as 28 March 2012. It was accepted that there were other statements in the notification letter that might indicate that the day of termination was 1 March 2012 and that there might be some infelicity in expression in that letter. However the Respondent submitted that while s.117(2) required a minimum period of notice, the fact that it was effectively commuted by payment in lieu did not alter the characterisation of what had occurred, so that it could be said that a four week period of notice was given which would expire on 28 March 2012.
The written notice of termination dated 1 March 2012 is not entirely consistent. Somewhat confusingly, it stated that that Ms Ingersole’s position was “now” redundant, but then that her position “will become redundant effective on 28 March 2012”. However in all the circumstances I am not persuaded that the Club intended that its employment relationship with Ms Ingersole should continue until 28 March 2012. The letter continued:
As discussed with you, CHCC does not require you to work out your notice period. Your notice period will be paid out to you on termination of your employment. Your last day of employment with CHCC will be on 1 March 2012. (emphasis added)
The letter also referred to a Schedule of estimated monetary entitlements that would be paid to Ms Ingersole “on the termination” of her employment. It advised her that these payments would be deposited into her bank account by close of business on 1 March 2012. Read as a whole, this letter made clear to Ms Ingersole that her employment was to terminate immediately and that payment was being made in compensation for the payments she would have received if she had been given four weeks notice.
The resolution passed at the Board Meeting of the Club on 29 February 2012 was, relevantly, “that the administration manager’s position be made redundant effective 1 March 2012”. It is clear from all accounts of the meeting between Ms Ingersole and Messrs Walker, Geraghty and Moore on 1 March 2012 that she was advised orally that she was being made redundant on that day and that she would be paid out in lieu of four weeks’ notice. She was required to relinquish Club property that day. She ceased to work at the Club that day. These factors also suggest that the day of termination of Ms Ingersole’ employment was 1 March 2012.
The concept “the day of the termination” appears in legislation which suggests that there should be no uncertainty in ascertainment of that date. Under s.117(2) of the Act the day of termination may be either the time at which notice that is worked out in accordance with s.117(3) expires or in a case in which the employer has paid the employee in lieu of notice, the day on which the employment is terminated. In this case the Club paid Ms Ingersole in lieu of notice. Moreover s.117(2)(b) refers to payment in lieu of notice “of at least the amount the employer would have been liable to pay to the employee (or to another person on the employee’s behalf) at the full rate of pay for the hours the employee would have worked had the employment continued until the end of the minimum period of notice.” (Emphasis added). Such provisions support the view that, as there was payment in lieu of notice Ms Ingersole’s employment was terminated on 1 March 2012. It did not continue until 28 March 2012. As Wilcox J stated in Siagian v Sanel Pty Ltd (1994) 122 ALR 333 at 355:
It seems to me that, in the absence of evidence of a contrary intention, it should usually be inferred that the employer intended the termination to take effect immediately. This conclusion not only reflects the more accurate meaning of the phrase "payment in lieu of notice"; it accords with common sense. An employer who wishes to terminate an employee's services, and is prepared to pay out a period of notice without requiring the employee to work, will surely usually wish to end the relationship immediately. If the employee is not to work, there is no advantage to the employer in keeping the relationship alive during the period for which payment is made; and there is the disadvantage that the employer will be burdened with employment related costs, such as workers' compensation insurance, payroll tax, liability for leave payments etc. The employer also incurs the risk that some new burden will be imposed in respect of the employment during the period.
In this case there is no contrary intention. It is clear that the Club paid Ms Ingersole in respect of the hours she would have worked between 1 March 2012 and 28 March 2012 in lieu of notice in purported compliance with s.117(2)(b) of the Fair Work Act. Having regard to the language of s.117(2)(b), such a payment in lieu of notice did not have the effect of extending the employment until the date of the end of the minimum period of notice (see s.117(2)(b) and Siagian v Sanel).
I am satisfied that the day of termination of Ms Ingersole’s employment was 1 March 2012. Hence it was necessary for the Club to give Ms Ingersole written notice on or before 1 March 2012.
I agree with Ms Ingersole’s submission that merely posting the written notice of termination on 1 March 2012 did not suffice to “give” her written notice of the day of termination as required under s.117(1) when regard is had to that section and to ss.28A and 29 of the Acts Interpretation Act.
The question is not the meaning of “given” in some abstract sense but its meaning in s.117 of the Act which clearly envisages that there will be some certainty in relation to the day on which written notice is given. On the general principle that in interpreting an Act primacy should normally be given to the substantive provisions of the Act. It is relevant that it is consistent with the language of s.117(1) of the Act that the written notice be received (or at least deemed to have been given or received) on or before the day of termination. Section 117(1) contains not only a prohibition on termination unless the employer has given written notice of the day of termination but also a specification that the day of termination cannot be before the day the notice is given. On its face this provision envisages written communication being received by the employee no later than the day of termination itself. Such an interpretation is reinforced by the fact that s.117(3) calculates the minimum period of notice based on an employee’s period of continuous service “at the end of the day the notice is given”. Further, under s.117(2)(a), where there is no payment in lieu of notice (calculated based on the period of service up to the end of the day notice is “given”) the employer must not terminate the employee’s employment unless the time between giving the notice and the day of termination is at least the minimum period of notice.
Section 28A(1)(a)(ii) of the Acts Interpretation Act provides that for the purpose of an Act requiring or permitting the service of a document on a person, whether or not the expression “give” is used, the document may be served on a person by leaving it at, or by sending by prepaid post to, the address of the place of residence or business of the person last known to the person serving the document. Section 117(1) is a provision that requires or permits the service of a document on a person. It was not disputed that posting a letter by registered post to Ms Ingersole would meet the requirement of sending it by prepaid post to Ms Ingersole’s place of residence (see Minister for Immigration v Singh [2000] FCA 377 in which O’Connor and Mansfield JJ stated at [30] that the use of registered prepaid mail would satisfy the requirements of sections 28A and 29 of the Acts Interpretation Act).
However, what is in issue is not the method of giving written notice, but rather when a notice sent by prepaid post on 1 March 2012 is “given” for the purposes of s.117 of the Act, in particular whether such a notice was “given” when the letter was posted, or at some later time. In the absence of anything to the contrary in the Act, s.29 of the Acts Interpretation Act has the effect that service of a notice given by post is deemed to have been effected at the time at which the letter would be delivered in the ordinary course to post (unless the contrary is proved).
The Respondent submitted that s.29 of the Acts Interpretation Act was not applicable. However both ss.28A and 29 are referred to in the Notes to s.117. Section 13 of the Acts Interpretation Act provides that all material from and including the first section of an Act to the end of the last Schedule to the Act, is part of the Act. It is clear from s.13 and the Explanatory Memorandum to the Acts Interpretation Amendment Bill 2011 which introduced the present s.13, that Explanatory Notes within an Act are to be treated as part of the Act, albeit the weight to be given to such material in interpreting the terms of the Act will (as in the past) ordinarily be less than the words of a section itself, given the function of such notes (see Wacando v The Commonwealth (1981) 148 CLR 1; [1981] HCA 60 at 16 per Gibbs CJ).
The inclusion of the Notes to s.117 in the Act supports the view that both s.28A and s.29 of the Acts Interpretation Act are applicable in determining when notice under s.117 is given. That is also consistent with the language and purpose of s.117 as discussed above.
Section 117 of the Fair Work Act authorises service of a written notice of termination by post (albeit it uses the expression “give”). Hence, in the absence of proof to the contrary, under s.29 service is deemed to have been effected at the time the letter would be delivered in the ordinary course of post (as to which see s.160 of the Evidence Act).
Thus, s.29 would deem a written notice of termination sent by post to be given at the time the letter would be delivered in the ordinary course of post.
In this case Ms Turner posted the notification of termination to Ms Ingersole on Thursday, 1 March 2012. In my view merely posting the letter did not satisfy the requirement in s.117(1) that Ms Ingersole be “given” written notice of the day of termination in circumstances where the day of termination could not be before the notice was given. Rather, unless the contrary was proved, the notice posted on 1 March 2012,would be deemed to have been given to Ms Ingersole at the time the letter would be delivered in the ordinary course of the post (despite the evidence that the notice posted on 1 March 2012 was not actually received by Ms Ingersole until 13 March 2012). Under s.160(1) of the Evidence Act that would be on 7 March 2012.
However, on 6 March 2012 a copy of the written notice of termination of employment was delivered to Ms Ingersole. Under s.28A of the Acts Interpretation Act personal delivery constitutes giving notice to Ms Ingersole. Such notice was given on 6 March 2012. Hence, under s.117(1) of the Fair Work Act the date of termination of Ms Ingersole’s employment could not be prior to 6 March 2012. In this respect there has been a contravention of s.117(1) of the Fair Work Act.
Orders
Counsel for the Applicant indicated that she sought penalties for breaches of the Fair Work Act. The hearing proceeded on the basis that any penalty hearing would be conducted at a later date.
Under s.545 of the Act the Court may make any order it considers appropriate if satisfied a person has contravened a civil remedy provision, including (see s.545(2)(b)) an order awarding compensation for loss that a person has suffered because of the contravention. Ms Ingersole should be paid for the period between 1 March 2012 and 6 March 2012. There is no suggestion of any other entitlement to compensation for the contravention of s.117. There has been no quantification of salary she would have been entitled to on the basis that her employment continued until 6 March 2012 or of any increase in her entitlements when this additional period is included in the calculations. I intend to give the parties the opportunity to make submissions (unless they are able to agree on proposed consent orders) in relation to an appropriate order for compensation for loss Ms Ingersole has suffered because of the contravention of s.117 of the Act and to agree on directions in relation to the hearing on penalty. Otherwise the application should be dismissed.
I certify that the preceding three hundred and eighty-six (386) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Associate:
Date: 11 March 2014
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