Lees v Intrepid Travel Pty Ltd

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Lees v Intrepid Travel Pty Ltd [2023] FedCFamC2G 766

File number: MLG 4126 of 2020
Judgment of: HER HONOUR JUDGE C.E. KIRTON KC
Date of judgment: 24 August 2023 
Catchwords: INDUSTRIAL LAW - Fair Work – alleged contraventions of the Fair Work Act 2009 (Cth) - adverse action – restructure of travel business due to Covid-19 pandemic - dismissal of general manager following refusal to accept and perform redeployment role –whether the Applicant’s initial role was made redundant and he was entitled to redundancy pay - whether the Applicant was dismissed because he exercised his workplace rights and/or took personal leave – whether the Respondent exerted undue influence or undue pressure on the Respondent – Applicant’s role was not redundant – reverse onus discharged - no contraventions - application dismissed
Legislation: Fair Work Act 2009 (Cth) ss 119, 120, 334, 340, 341, 342, 344, 351(1), 352, 360, 361, 389, 545, 546(3), 547 and 789GE
Cases cited:

Alam v National Australia Bank Limited [2021] FCAFC 178; (2021) 288 FCR 301

Amcor Ltd v Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241

Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32

Cigarette & Gift Warehouse Pty Ltd v Whelan [2019] FCAFC 16

Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389

Construction, Forestry, Mining and Energy Union v De Martin & Gasparini Pty Limit (No 2) [2017] FCA 1046

Dibb v Commissioner of Taxation [2004] FCAFC 126; (2004) 136 FCR 388

Jones v Department of Energy and Minerals (1995) 60 IR 304

Murrihy v Betezy.com.au Pty Ltd (2013) 238 IR 307; [2013] FCA 908

State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184

Suridge v Boral Window Systems Pty Ltd [2012] FWA 3126

UGL Rail Services Pty Ltd v Janik (2014) 246 IR 320; [2014] NSWCA 436

Ulan Coal Mines Ltd v Howarth [2010] FWAFB 3488; (2010) 196 IR 32
Division: Division 2 General Federal Law
Number of paragraphs: 121
Date of last submissions: 9 March 2022
Date of hearing: 7, 8 and 9 March 2022
Place: Melbourne (by videoconference)
Counsel for the Applicant: Ms Zhou
Solicitor for the Applicant: Holdstock Law
Counsel for the Respondent: Mr Howard
Solicitor for the Respondent: Thomson Geer

ORDERS

MLG 4126 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

CHARLES LEES

Applicant
AND:

INTREPID TRAVEL PTY LTD (ACN 007 172 456)

Respondent

order made by:

HER HONOUR JUDGE C.E. KIRTON KC

DATE OF ORDER:

24 August 2023

THE COURT ORDERS THAT:

1.The Application filed on 30 November 2020 is dismissed.

2.Any application for costs shall be made in accordance with r 22.02(1)(b) and Pt 22 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court…

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Details
Case
[2023] FedCFamC2G 766
Decision Date

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, the case of Lees v Intrepid Travel Pty Ltd involved an employment dispute between the Applicant, who had been employed by the Respondent, an adventure travel company, and the Respondent itself. The Applicant had been offered and accepted a role as Managing Director – North America, but due to the Covid-19 pandemic and subsequent border closures, he was unable to relocate. The Applicant subsequently revoked his acceptance of the role and continued in his existing position as Global General Manager – PEAK DMC. The Applicant brought an application under the Fair Work Act 2009 (Cth) claiming that his role had become redundant, that he had been dismissed in contravention of s 340 of the Act, and that he had been subjected to undue influence or pressure in contravention of s 344 of the Act.

The court was required to determine whether the Applicant's role had become redundant, whether his dismissal was in contravention of s 340 of the Act, and whether he had been subjected to undue influence or pressure in contravention of s 344 of the Act. The court examined the evidence and submissions from both parties and found that the Applicant's role had not become redundant, that his dismissal was not in contravention of s 340 of the Act, and that he had not been subjected to undue influence or pressure in contravention of s 344 of the Act. The court noted that the Applicant had not been dismissed and that his position had not been made redundant, and that the offer of the Managing Director – North America role had been withdrawn due to the Covid-19 pandemic and the Applicant's own decision to revoke his acceptance of the role.

The court dismissed the Applicant's application and determined that the Applicant was not entitled to any compensation for loss and damages. The court held that the Applicant's role had not become redundant and that the Respondent had not contravened ss 340 or 344 of the FW Act. The Applicant's application was dismissed in its entirety, and the court noted that any application for costs should be made in accordance with Pt 22 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

Orders

Orders of the court

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Background

Background to the litigation

I have determined that:(a)The Applicant’s role at the time of his dismissal was not redundant;(b)The Respondent has not contravened ss 340 or 344 of the FW Act; and(c)The Application is to be dismissed.BACKGROUND The background to this matter is largely agreed upon by both parties. The Respondent is an adventure travel company with its headquarters located in Melbourne, Australia. Prior to the onset of the Covid-19 pandemic, the Respondent was comprised of various different ‘brands’. The Applicant worked in the division of the Respondent that housed all Peak Destination Management Company companies (Peak DMC Division). The other divisions were the Intrepid Division and corporate services. The following people are relevant:(a)Mr Thomas Bruce Beadle, the Respondent’s Chief Operating Officer (Mr Beadle);(b)Ms Natalie Kidd, Managing Director of the Peak DMC Division and one of the two Chief Operating Officers of the Respondent (Ms Kidd). Ms Kidd became the Chief People and Purpose Officer of the Respondent during the Respondent’s restructure. The Applicant reported to Ms Kidd;(c)Ms Kirrily Ruth Tibb, General Manager of People for the Respondent (Ms Tibb);(d)Mr James Paul Thornton, the Chief Executive Officer of the Respondent (Mr Thornton); and(e)Mr Darrell Andrew Wade, the Chairman of Intrepid Group Limited, the parent company of the Respondent (Mr Wade). The Applicant commenced employment with the Respondent on 18 December 2012. Throughout the Applicant’s employment with the Respondent he held various roles as follows:(a)Financial Controller – Peak Destination Management Company (PEAK DMC) from 18 December 2012;(b)General Manager Finance – PEAK DMC from 1 July 2013; and(c)Global General Manager – PEAK DMC from 1 December 2016, which led the team within Intrepid known as ‘PEAK DMC Global’. The Applicant took six (6) weeks of extended annual leave from 21 December 2018, which the Applicant deposed was due to stress and burnout.[3][3] CB 299. From 1 January 2020 the Applicant commenced a secondment for a six (6) month period in the role of Managing Director - Hotels for 50% of his time, whilst continuing his duties as Global General Manager – PEAK DMC for the remaining 50% of his time.[4][4] CB 125-127. On 21 February 2020, the Respondent offered the Applicant the role of Managing Director – North America (MD Offer), which required the Applicant to relocate and commence on 1 May 2020. The Applicant accepted the MD Offer on 24 February 2020. Due to the onset of Covid-19 and the closure of international borders, the Applicant was unable to relocate as planned in accordance with the MD Offer. Consequently, the Respondent instructed the Applicant to continue working in his existing role as Global General Manager – PEAK DMC (Initial Role). On 22 June 2020 the Applicant revoked his acceptance of the MD Offer stating Covid-19 pandemic and personal reasons. On 1 July 2020 the Applicant concluded carrying out the Managing Director - Hotels role and returned to performing the Initial Role full time.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Given my findings that the Respondent has not contravened the FW Act, the Applicant is not entitled to any compensation for loss and damages.CONCLUSION I have determined that the role of the Applicant at the Respondent was not redundant and therefore the Applicant is not entitled to redundancy pay. As discussed in these Reasons for Judgment, I am satisfied that the Applicant was not dismissed for any reason in contravention of s 340 of the FW Act. The Applicant was not subjected to undue influence or undue pressure in contravention of s 344 of the FW Act. Accordingly, the Application must be dismissed In the event that either party desires to make an application for costs after considering these Reasons for Judgment, any such application should be made in accordance with Pt 22 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

Ratio Decidendi

Legal Principle Established

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