LAI v Symantec (Australia) Pty Ltd

[2013] FCCA 625

FEDERAL CIRCUIT COURT OF AUSTRALIA

LAI v SYMANTEC (AUSTRALIA) PTY LTD [2013] FCCA 625

Catchwords:
INDUSTRIAL LAW – Adverse action claim – applicant pregnant and going on parental leave – whether or not dismissal was a genuine redundancy – whether a payslip was provided in accordance with s.536 of the Act.

Legislation:
Fair Work Act 2009, ss.340, 346, 536, 351, 361, 536, 611.
Fair Work Regulations 2009, reg.3.33.

Cases cited:
Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32 (7 September 2012)
CFMEU v Bengalla Mining Co Pty Ltd [2013] FCA 267 at paragraph 11
Klein v Metropolitan Fire & Emergency Services Board [2012] FCA 1402
R v Industrial Commission of SA: Ex parte Adelaide Milk Supply Co. Op Ltd (1977) 16 SASR 6
Ramos v Good Samaritan Industries [2013] FCA 30
Wolfe v ANZ Banking Group Ltd [2013] FMCA 65 (7 February 2013)

Applicant: SUSAN LAI

Respondent: SYMANTEC (AUSTRALIA) PTY LTD

File Number: SYG 1002 of 2012

Judgment of: Judge Altobelli

Hearing date: 19 April 2013

Date of Last Submission: 19 April 2013

Delivered at: Sydney

Delivered on: 28 June 2013

REPRESENTATION

Counsel for the Applicant: Mr Latham

Solicitors for the Applicant: James Tuite & Associates

Counsel for the Respondent: Ms Raper

Solicitors for the Respondent: Baker & Mckenzie

ORDERS

1. The Application filed 8 May 2012 is dismissed insofar as it seeks a declaration under s.340 Fair Work Act 2009.

2. Declaration that the respondent has contravened s.536 Fair Work Act 2009.

3. Either party has leave to re-list this matter before Judge Altobelli on the issue of penalty, on seven (7) days’ notice, provided such request for re-listing is made within 28 days.

4. Any application for costs proceed by way of written submissions not exceeding 500 words.  The applicant for costs should file and serve their submissions within 21 days. The respondent to the costs application should file and serve within a further 21 days.

FEDERAL CIRCUIT COURT OF AUSTRALIA
AT SYDNEY

SYG 1002 of 2012

SUSAN LAI

Applicant

And

SYMANTEC (AUSTRALIA) PTY LTD

Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant in this case contends that the respondent has contravened ss.340, 351 and 536 of the Fair Work Act 2009. If established, the contraventions of ss.340 and 351 amount to adverse action against the applicant. The respondent contends that there is no basis for this claim. The alleged contravention of s.536 relates to failure to provide a payslip. The respondent contends that there is no such failure.

Background

1. The applicant describes herself as a financial planning and analysis manager, is 35 years old, and lives in Sydney.  The respondent company is a wholly owned subsidiary of Symantec Corporation, which has many subsidiaries in other countries.  Evidence on behalf of the respondent was given by Joseph Ong, the Senior Regional Director, Finance, Asia Pacific and Japan of the company, based in Singapore.  Mr Ong described Symantec as one of the biggest software companies in the world with 20,000 employees.

2. The applicant commenced working with the respondent in its Sydney office in January 2006 as a senior business operations analyst.  In 2008 she was promoted to Financial Planning and Analyst Manager for Consulting Services.  Her annual performance reviews were always excellent.  She consistently received performance bonuses.  She participated in a stock options plan.  In November 2010 she won an award for Most Valuable Virtual Player.

3. In September 2011 the applicant contacted Mr Ong to inform him that she would be submitting a maternity leave application.  This was accepted by the respondent, and arrangements were put in place to cover the applicant’s workload in her absence.  In January 2012 she applied for and was granted parental leave which was to commence on 1 March 2012 and conclude on 4 November 2012. 

4. On 1 February 2012 the applicant, Mr Ong, and a human resources consultant employed by the respondent met in Sydney.  The applicant was advised that her position had been eliminated but that she could seek re-deployment within the respondent and the Symantec group.  No positions were available which the applicant considered suitable.

5. On 8 February 2012, as the applicant could not find alternative roles in the company, she was made redundant.  Specifically, by way of letter dated 8 February 2012 (Annexure I to the applicant’s affidavit dated 18 October 2012) the applicant was advised:

   Dear Susan

   The company has undertaken a review of its organisation and we regret to advise that your position with Symantec has been impacted by the outcomes of this review.  Effective 2 March 2012, your role is being eliminated.

   In the absence of a suitable alternative role, your role will be terminated via redundancy.  However:

   * The next five business days margin for you to seek redeployment within Symantec.  During this period, you have time to review all available job opportunities within Symantec and apply for positions that you’re both genuinely interested and are qualified.  Please refer to the redeployment Frequently Asked Questions, attached to this note.

   * In the event you have not secured an alternative role with the company by 1 March 2012, your employment with Symantec Australia Pty Ltd will terminate 2 March 2012.

   This letter outlines the separation arrangements that are being put into place for you.

6. As it turns out the applicant was not able to be re-deployed within Symantec.  She was terminated on 2 March 2012.  She received outstanding salary, five (5) weeks’ payment in lieu of notice and 16 weeks’ severance pay.

7. On 16 March 2012 the applicant gave birth to her son.  She has not worked on a full-time basis since then.

8. The evidence of Mr Ong was that Symantec restructured for operational reasons and that the applicant was but one of 21 Symantec employees who were made redundant across the Asia Pacific and Europe regions.  His evidence is that the applicant’s position does not remain and that some of her former duties, but not all, are now performed by an employee in Singapore.

The proceedings

1. The applicant filed her application on 8 May 2012, and Points of Claim were filed 2 July 2012.  She relied on her three affidavits sworn 18 October 2012, 21 December 2012 and 3 April 2013.  The applicant was represented by Mr Latham of counsel.

2. The respondent’s Defence was filed on 31 July 2012.  Mr Ong gave evidence on behalf of the respondent and filed two affidavits sworn 30 November 2012 and 16 April 2013.  Ms Raper of counsel appeared for the respondent.

3. Both the applicant and Mr Ong gave oral evidence.  They were both good witnesses who were consistently responsive and cooperative in cross-examination.  There is nothing in the manner that they gave evidence which would suggest the slightest degree of evasiveness in either of them.  They were both objective and credible witnesses.  The court does not accept any submission to the contrary.

The applicant’s case – adverse action

1. The applicant contends that the respondent took adverse action against her because she proposed to exercise a workplace right to parental leave.

2. Section 340 Fair Work Act states:

   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.

3. Section 351 of the Act states:

   An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person's race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

4. The applicant contends, and there is no dispute, that the civil onus applies. However s.361 operates to reverse the onus in this case. It provides:

   (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.

   (2)  Subsection (1) does not apply in relation to orders for an interim injunction.

5. The applicant’s case is that the respondent’s decision to terminate the applicant was motivated by a reason or interest that included a prohibited reason.  Her case is that she was terminated because she was pregnant and/or because she sought to exercise her rights to parental leave.

The respondent’s case – adverse action

1. The focus of the respondent’s case was to demonstrate that the adverse action was not taken for a prohibited reason within the meaning of ss.340 and 351. Their case is that Mr Ong’s evidence demonstrates that the applicant’s pregnancy and family responsibilities played no role in the decision to terminate her.

The Applicable Law

1. Both parties relied on the High Court’s decision in Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32 (7 September 2012). At paragraph 5 of the reasons of French CJ and Crennan J their Honours describe the present task of the court:

   The task of a court in a proceeding alleging a contravention of s346 is to determine, on the balance of probabilities, why the employer took adverse action against the employee, and to ask whether it was for a prohibited reason or reasons which included a prohibited reason. This appeal was concerned with identifying the correct approach to that task.

2. Whilst that court was of course dealing with s.346 of the Act, and not s.340, the real issue is interpretation of similar provisions (eg. both use the word “because”) and how they operate together with s.361.

3. What their Honours describe as the “correct approach” is set out at paragraphs 41-45 of their reasons:

   41. The question of why an employer took adverse action against an employee is a question of fact arising from the operation of interdependent provisions of the Fair Work Act. These provisions must be construed together in accordance with the principles of statutory construction established by this Court, which must begin with a consideration of the text of the relevant provisions and may require consideration of the context including the general purpose and policy of the provisions.

   42. Determining why a defendant employer took adverse action against an employee involves consideration of the decision-maker's "particular reason" for taking adverse action (s 361(1)), and consideration of the employee's position as an officer or member of an industrial association and engagement in industrial activity ("union position and activity") at the time the adverse action was taken (ss 342, 346(a), 346(b), 347 and 361(1)).

   43. Clearly a defendant employer interested in rebutting the statutory presumption in s 361 can be expected to rely in its defence on direct testimony of the decision-maker's reason for taking the adverse action. The majority in the Full Court correctly rejected an argument put by the respondents that the introduction of the statutory expression "because" into a legislative predecessor to s 346, in place of the previous statutory expression "by reason of", rendered irrelevant the state of mind of the decision-maker.

   44. There is no warrant to be derived from the text of the relevant provisions of the Fair Work Act for treating the statutory expression "because" in s 346, or the statutory presumption in s 361, as requiring only an objective enquiry into a defendant employer's reason, including any unconscious reason, for taking adverse action. The imposition of the statutory presumption in s 361, and the correlative onus on employers, naturally and ordinarily mean that direct evidence of a decision-maker as to state of mind, intent or purpose will bear upon the question of why adverse action was taken, although the central question remains "why was the adverse action taken?".

   45. This question is one of fact, which must be answered in the light of all the facts established in the proceeding. Generally, it will be extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer. Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker or because other objective facts are proven which contradict the decision-maker's evidence. However, direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer even though an employee may be an officer or member of an industrial association and engage in industrial activity.

4. In this case Mr Ong gave evidence.  This is the “direct evidence of a decision-maker as to state of mind, intent or purpose” to which their Honours refer in the passage above.  There are obvious limitations to this direct evidence.  It might be unreliable.  In this case, as will be seen below, the applicant contends that it is unreliable and that one indicia of this was Mr Ong’s failure to follow Symantec’s own policies and procedures about termination, transfers and changes in job duties and responsibilities (the JPS worksheet).  If, however, the court accepts Mr Ong’s direct evidence, this may well discharge the burden on the employer.

5. At paragraphs 100-104, Gummow and Hayne JJ discuss the meaning of “because” in s.346 which is in similar terms to s.340:

   100. The application of s 346 turns on the term "because". This term is not defined. The term is not unique to s 346. It appears in s 340 (regarding workplace rights), s 351 (regarding discrimination), s 352 (regarding temporary absence in relation to illness or injury) and s 354 (regarding coverage by particular instruments, including provisions of the National Employment Standards).

   101. The use in s 346(b) of the term "because" in the expression "because the other person engages ... in industrial activity", invites attention to the reasons why the decision-maker so acted. Section 360 stipulates that, for the purposes of provisions including s 346, whilst there may be multiple reasons for a particular action "a person takes action for a particular reason if the reasons for the action include that reason". These provisions presented an issue of fact for decision by the primary judge.

   102. Reference was made in argument to Purvis v New South Wales. That litigation concerned the application of the Disability Discrimination Act 1992 (Cth) to the suspension and expulsion of a disabled student from a State school. Section 5(1) used the expression "because of the disability". Gummow, Hayne and Heydon JJ emphasised that s 10 of the statute stated that if an act is done for two or more reasons, one of which is the disability of a person, even if it not be the dominant or a substantial reason for doing the act, the act is taken to be done for that reason. This provision may be compared with s 360 of the Act just described.

   103. With respect to what became s 346 of the Act, paragraph 1458 of the Explanatory Memorandum to the Fair Work Bill 2008 stated:

   "Clause 360 provides that for the purposes of Part 3-1, a person takes action for a particular reason if the reasons for the action include that reason. The formulation of this clause embodies the language in existing section 792 which appears in Part 16 of the WR Act (Freedom of Association) and includes the related jurisprudence. This phrase has been interpreted to mean that the reason must be an operative or immediate reason for the action (see Maritime Union of Australia v CSL Australia Pty Limited). The 'sole or dominant' reason test which applied to some protections in the WR Act does not apply in Part 3-1." (emphasis added)

   The phrase "operative or immediate reason" used in CSL is relevantly indistinguishable from the phrase "a substantial and operative factor" used by Mason J in Bowling.

   104. In light of the legislative history of s 346 and the intention of Parliament outlined above, the reasoning of Mason J in Bowling is to be applied to s 346. An employer contravenes s 346 if it can be said that engagement by the employee in an industrial activity comprised "a substantial and operative" reason, or reasons including the reason, for the employer's action and that this action constitutes an "adverse action" within the meaning of s 342.

6. Thus, on the test promulgated in the passage above, if a substantial and operative reason was or included the applicant’s pregnancy or parental leave rights, this would constitute adverse action against her. Their Honours warn at paragraph 121 of the dangers of an enquiry contrasting “objective” and “subjective” tests in applying s.346. They conclude at paragraph 126-128:

   126. The relevant frame of reference in this case is a statutory provision in which neither the words "objective" nor "subjective" appear. There is an inherent risk of misguidance when seeking to imply tests or requirements in the application of a statutory provision absent some persuasive basis to do so. Nothing was put in argument, nor are there any decisions of this Court, to provide such a basis. Indeed, no direct challenge was made to what had been said by Mason J in Bowling.

   127. In determining an application under s 346 the Federal Court was to assess whether the engagement of an employee in an industrial activity was a "substantial and operative factor" as to constitute a "reason", potentially amongst many reasons, for adverse action to be taken against that employee. In assessing the evidence led to discharge the onus upon the employer under s 361(1), the reliability and weight of such evidence was to be balanced against evidence adduced by the employee and the overall facts and circumstances of each case; but it was the reasons of the decision-maker at the time the adverse action was taken which was the focus of the inquiry.

   128. Whilst it is true to say, as do the respondents, that there is a distinction between discharging the onus of proof and establishing that the reason for taking adverse action was not a proscribed reason, there is nothing to suggest that the conclusions drawn by the primary judge, and the findings and reasons upon which these were based, did not take this into consideration. As Lander J concluded, if the reasons for the conclusions and the facts for which they were formulated are not challenged, then the contravention of s 346 cannot be made out. This proposition should be accepted. To hold otherwise would be to endorse the view that the imposition of an onus of proof on the employer under s 361(1) creates an irrebuttable presumption at law in favour of the employee.

7. Finally, Hayden J warned of the dangers of searching for unconscious elements in decision making at paragraph 146:

   To search for the "reason" for a voluntary action is to search for the reasoning actually employed by the person who acted. Nothing in the Act expressly suggests that the courts are to search for "unconscious" elements in the impugned reasoning of persons in Dr Harvey's position. No requirement for such search can be implied. This is so if only because it would create an impossible burden on employers accused of contravening s 346 of the Act to search the minds of the employees whose conduct is said to have caused the contravention. How could an employer ever prove that there was no unconscious reason of a prohibited kind? An employer's inquiries of the relevant employees would provoke, at best, nothing but hilarity. The employees might retort that while they could say what reasons they were conscious of, they could say nothing about those they were not conscious of.

1. In his closing submissions counsel for the applicant exhorted the court not to adopt any test based on “substantial and operative reason” on the basis that the formulation was not used by French CJ and Crennan J, and was not part of the ratio of the judgment of Hayden J.  With respect to counsel, to ignore the test would be as great an error as it would be to ignore the facts of the present case.  In any event the formulation has been adopted in other subsequent cases eg. CFMEU v Bengalla Mining Co Pty Ltd [2013] FCA 267 at paragraph 11; Ramos v Good Samaritan Industries [2013] FCA 30 at paragraph 140; Klein v Metropolitan Fire & Emergency Services Board [2012] FCA 1402 at paragraph 100.

2. The applicant’s counsel also submitted that adverse action for a prohibited reason could be inferred by a finding that there was no rigorous case for the retrenchment.  The respondent contends that this misconceives the relevant findings that the court is required to make in the conclusions to be drawn when considering the evidence.  The court accepts the respondent’s contention.  Even if such a finding were to be made (a matter strenuously opposed by the respondent) the absence of a business case is simply one of many factors taken into account in determining what the respondent’s reasons were for terminating the applicant, and whether the prohibited reason was a substantial and operative one.  To elevate this factor above all others would be to fall into appellable error.  In any event the court is hardly placed to assess the robustness or otherwise of the respondent’s business case for retrenchment on the evidence before it.

Reasons for adverse action: Mr Ong’s evidence

1. Mr Ong’s evidence was that he was involved in the implementation of a number of redundancies which included the respondent, and which totalled 21 positions across the Asia Pacific region.  The applicant was made redundant, as well as at least one other employee in Sydney.  The applicant’s direct report in Singapore was also made redundant.  The applicant’s former position no longer remains in existence and some, but not all, of her former functions are performed by a Symantec employee in Singapore.  Mr Ong consistently stated that the decision was driven by cost-cutting initiatives.  He explained that the applicant was managing activities outside of Australia, and he believed that those functions could be better performed in Singapore where most of her team was anyway.  The decision to terminate the applicant’s position thus had nothing to do with her maternity leave or parental responsibilities.

2. Mr Ong was meticulously cross-examined by Mr Latham for the applicant over two days.  Whilst the applicant may well be sceptical about his evidence relating to the reasons for retrenching her, there is nothing he said, or no aspect of the way in which he said it, that suggests he was insincere.  He was not discredited in cross-examination.  What he said was not inherently implausible.  There are no objective facts to contradict his evidence.  All the contemporaneous documents support his evidence.  There is not the slightest suggestion that there was any enmity between the applicant and Mr Ong, indeed the opposite seems to be the case.

3. There is evidence to the effect that Mr Ong did not meticulously follow Symantec’s own policy relating to methods and processes for identification and selection of employees for termination, transfers or changes in job responsibilities.  He conceded this.  The policy in question is manifested in a document entitled JPS, an abbreviation for Job Profile Selection, and it sets out the business rationale for the relevant decision.  Mr Ong believed that the policy did not apply to employees whose roles no longer existed ie. redundancy situations.  In cross-examination he conceded that there was no specific exemption in the policy for redundancies and thus it did apply to the applicant.  He emphasised, however, the fact that the applicant’s position was no longer available, and her job was not replaced.  The following exchange took place between the bench and Mr Ong:

   There is no doubt is there that the document we are looking at assists – is part of the process for identifying and selecting employees for termination?‑‑‑It is, your Honour.

   So that’s the very, very top line under the heading, Prepare and Justify?‑‑‑That’s right.

   But in some respects the document looks like it sets out criteria for selection ‑ ‑ ‑?‑‑‑Yes.

   ‑ ‑ ‑ of employees?‑‑‑That’s right.

   ‑ ‑ ‑ for existing positions?‑‑‑That’s right.  Well, existing positions or positions that we may have, we organise and there is one position and then there’s a couple of people that, you know, possibly could go for the one position.

   Right, so in a case where a role is no longer available, a position is no longer available?‑‑‑That’s right.

   Do you apply the same selection criteria as you would in any other case where somebody was being considered for a position?‑‑‑Your Honour, the reality is that when we actually chose between two people we will consider their skills, their experience, they are able to do the job.  So it’s a lot of criteria and the whole form helps us to go through the whole process and we will rank each of these employees and decide without reference to any of the salaries or things like that ..... in such a way that we will be looking at their skill sets and their ability to do the job.  Now, where there is no position available or there is no other candidates available then we don’t even have to really go through some of this criteria because the job is just no longer existing.

   Yes?‑‑‑And in Ms Lai’s case that was unfortunately the reality that we did not have – that that position was no longer needed.

4. Counsel for the applicant submits that, as a result of this, the inference should be drawn that the termination was for a prohibited reason.  The court does not agree.  The applicant’s case at its highest is that because she was already planning to take maternity leave, and as a result of this some of her work had already be re-allocated to Singapore, when the redundancy issue came to be considered by the respondent, the fact (ie. the re-allocation of work) made it easier for the decision to be made to make her redundant.  But that goes nowhere near establishing on the balance of probabilities that the applicant’s maternity leave was a substantial and operative reason for her dismissal.  The inference simply cannot be so drawn in a case where the court accepts the evidence of Mr Ong.  Mere failure to comply with an employer’s own procedures in relation to termination does not, ipso facto, lead to the drawing of an adverse inference about the reason for what might otherwise be prohibited action.  It might make the process unfair, but it does not meant he action was a prohibited one (see eg. Wolfe v ANZ Banking Group Ltd [2013] FMCA 65 (7 February 2013) Whelan FM at paragraphs 95-99). As counsel for the respondent submitted at one point, the present application is not about administrative review of a decision, or an unfair dismissal proceeding, but rather to determine whether action was taken for a prohibited reason. There is no evidence before the court of a prohibited reason.

5. In submitting that what actually happened in this case was a genuine redundancy, counsel helpfully referred the court to “Macken’s Law of Employment” (6^th ed) by Sappideen, O’Grady, Warburton and Eastman at pp.285-287.  The learned authors refer to what they describe as the “classic definition” of redundancy given by Bray CJ in R v Industrial Commission of SA: Ex parte Adelaide Milk Supply Co. Op Ltd (1977) 16 SASR 6 at 8 where Bray CJ says:

   …the concept of redundancy in the context we are discussing seems to be simply this, that a job becomes redundant when the employer no longer desires to have it performed by anyone.  A dismissal for redundancy seems to be a dismissal, not on account of any personal act or default of the employee dismissed or any consideration peculiar to him, but because the employer no longer wishes the job the employee has been doing to be done by anyone.

6. The evidence in this case confirms that the applicant’s dismissal was not on account of anything pertaining to the applicant, but purely because her position was redundant.

Ms Lai’s evidence

1. Perhaps the most interesting aspect of the applicant’s evidence was its frankness and consistency with that of Mr Ong.  She seems to have had a very keen insight into what was going on within Symantec.  For example in cross-examination she said:

   …it’s the case, isn’t it, that when you had the meeting with Mr Ong and Ms Thang on 1 February ‑ ‑ ‑?‑‑‑Mm.

   ‑ ‑ ‑ when you were told about the fact that your position was going to no longer exist, that you said, “I understand the reason for making my role redundant”?‑‑‑Yes, I did.

   And that you knew that it was coming, but you just didn’t think that it would happen now?‑‑‑Yes.  I said that because the cost of employment in Australia is high, and including myself and a handful of Australian’s Symantec employee in the finance department, our roles can be done overseas, so the current off shoring – off shoring the – the finance department is a current practice for a lot of the multinational companies.  So – so that’s why when they told me that – when they told me that my role was retrenching, so I said, “Okay”, you know, “I – I can foresee that that’s going to happen at some times.”

   And so as at 1 February you had been contemplating for a while that your position was going to be made redundant?‑‑‑I was expecting that the whole department was going to be shutdown at some stage, including my role, yes.

   And so when you gave evidence earlier, about in January, not thinking about your position being made redundant, it’s a case that in January you were thinking about your position being made redundant?‑‑‑I wasn’t thinking in January.  I had this thought that my role was going to be retrenched is probably back in 2010, when – when there was a lot of restructuring that was happening in 2010.

   But if you were thinking about it in February why are you saying you weren’t thinking about it, just prior to that, in January?‑‑‑What in – you mean February 2012.  Because they told me so that’s why I’m thinking it.  If they did not tell me I wouldn’t be thinking it in January 2012, because in January 2012 I was just planning for my birth, and planning for how to transition my job to Yan Shan, because she was supposed to cover me during the maternity period, and I was trying to plan the work for the transition to be as smoothly as possible.  And I was just – had a lot of things to do in January, and I wasn’t thinking about retrenchment or no retrenchment, or – I just didn’t have the time to think.

2. Later in cross-examination the applicant accepted that in January 2012 she knew her position within Symantec was vulnerable:

   So you accept now that, as at January 2012, you thought that your position was in danger?‑‑‑Yes.

   And also, Sarah, I assume you mean Ms Turnbull?‑‑‑Yes.

   And Carol Lim says:

   I heard every department has to crunch their spend numbers.

   Do you see that?‑‑‑Yes.

   And you agreed with her in relation to that that you thought that the reason why your positions were in danger was because there was an imperative to save cost?‑‑‑Yes.

3. Internal communications between the applicant and other employers of Symantec (exhibits A3 and A6) confirm the extent of the applicant’s knowledge of, and even perhaps tacit acknowledgement of, the reasons for the redundancy.  The submission that the applicant expected to be made redundant is born out by the evidence.  Her understanding of the reasons for doing so were largely consistent with the reasons given by Mr Ong.

Conclusion on adverse actions

1. The evidence does not disclose that the respondent took adverse action against the respondent for a prohibited reason.  The evidence indicates that the applicant’s redundancy was for the reasons stated.

The alleged breach of s.536 Fair Work Act 2009

1. Section 536 of the Act states:

   (1)  An employer must give a pay slip to each of its employees within one working day of paying an amount to the employee in relation to the performance of work.

   Note 1:       This subsection is a civil remedy provision (see Part 4-1).

   Note 2:       Section 80 of the Paid Parental Leave Act 2010 requires an employer to give information to an employee to whom the employer pays an instalment under that Act.

   (2)  The pay slip must:

   (a)  if a form is prescribed by the regulations--be in that form; and

   (b)  include any information prescribed by the regulations.

2. The relevant regulation to which s.536(2) refers appears to be Fair Work Regulations r.3.33, notwithstanding its reference to s.535 instead of s.536. Regulation 3.33 states:

   (1)  For subsection 535(1) of the Act, a kind of employee record that an employer must make and keep is a record that specifies:

   (a)  the rate of remuneration paid to the employee; and

   (b)  the gross and net amounts paid to the employee; and

   (c)  any deductions made from the gross amount paid to the employee.

   (2)  If the employee is a casual or irregular part-time employee who is guaranteed a rate of pay set by reference to a period of time worked, the record must set out the hours worked by the employee.

   (3)  If the employee is entitled to be paid:

   (a)  an incentive-based payment; or

   (b)  a bonus; or

   (c)  a loading; or

   (d)  a penalty rate; or

   (e)  another monetary allowance or separately identifiable entitlement;

   the record must set out details of the payment, bonus, loading, rate, allowance or entitlement.

3. Exhibit A1 is a document entitled “PAY ADVICE March 2012” and it refers to the applicant.  The stated pay day is “23/03/2012”.  In the section entitled “Earnings (Taxable)” a number of amounts are shown.

   Base Salary (15.7576 x $61.62)  $970.95

   AL Encashment A (0.0000 x $0.00)               $16,076.02

   LSL Encashment A (0.000 x $0.00)               $13,092.66

   Non Trans ETP – Taxable  $5,692.69

   Term D – Tax Free  $33,743.00

   Total earnings  $69,575.32

   At the bottom of the document it states: “Date printed: 15/Mar/2012”.

4. The unchallenged evidence of the applicant is that she received this document on 16 March 2012.  It is also uncontroverted that she received her final payment from the respondent on 8 March 2012 by way of electronic transfer.

5. On 8 February 2012 the applicant was advised by the respondent that her role would be terminated by redundancy and that if she could not secure an alternative role with the respondent by 1 March 2012, her employment would terminate on 2 March 2012.  Her employment was in fact terminated by redundancy on 2 March 2012.  The letter dated 8 February 2012 setting out the terms of the redundancy stated that she would receive five weeks’ payment in lieu of notice, from 2 March 2012, and 16 weeks’ severance payment.

6. Counsel for the applicant contends that the facts set out above establish a contravention of s.536. The amount was paid to the applicant on 8 March, but the pay advice was not given until 16 March 2012. Counsel for the respondent contends that s.536 does not apply because the pay advice document did not relate to a payment to her “in relation to the performance of work”, it is a payment activated by virtue of termination and redundancy.  This is an argument that might have been more persuasive if the document being Exhibit A1 did not clearly identify a payment for “Basic Salary”.  The evidence in this regard, however, is that the applicant did not actually work on these dates. That does not change the fact that her employment was not terminated until 2 March 2012. Unlike the other payments referred to in the document, which were of a prospective nature, the payment of her base salary for 1 and 2 March was retrospective in nature. To this extent, therefore, the payment related to the performance of work, thus activating s.536. In relation to her basic salary, therefore, the respondent was required to provide a “pay slip” no later than 3 March 2012 and failed to do so. The respondent has breached s.536.

Hearing on penalty

1. The evidence establishes a breach of s.536 of the Act. The parties are agreed that any question of penalty should be considered after the issue of liability. No doubt the parties have incurred significant costs so if an abbreviated and economical way can be found to deal with this issue by consent, that would be to the benefit of the parties.

Costs

1. Should either party consider that they are entitled to costs, in order to minimise expense such application should proceed by way of written submissions not exceeding 500 words.  The applicant for such costs should file and serve the same within 21 days of the date of these reasons.  The respondent to such costs application should file and serve their submissions within a further 21 days.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Associate: 

Date:  28 June 2013