Lees v Intrepid Travel Pty Ltd
[2023] FedCFamC2G 766
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 may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
HER HONOUR JUDGE C.E. KIRTON KC:
INTRODUCTION
By an Application filed in this Court on 30 November 2020 (Application), Mr Charles Norman Lees (Applicant), alleged that Intrepid Travel Pty Ltd (ACN 007 172 456) (Respondent), contravened ss 340 and 344 of the Fair Work Act 2009 (Cth) (FW Act) by taking adverse action against him because of or for reasons which included that he exercised workplace rights.
The substance of the Statement of Claim filed by the Applicant on 30 November 2020 and amended 11 February 2022 (Amended Statement of Claim)[1] is that the Applicant alleged that he was dismissed from employment with the Respondent because he made a number of complaints and inquiries in relation to his employment and redundancy, took personal leave and instead of accepting the proposed redeployment role, pursued his right to redundancy.
[1] Court Book (CB) 1-16.
In addition, or alternatively, the Applicant claimed that he was subject to undue influence or pressure by the Respondent in relation to acceptance of the proposed redeployment role. The Applicant also alleged that his role was redundant and therefore the Respondent breached the National Employment Standards (NES) and cl 16 of the Applicant’s employment agreement.
The Respondent disputed the Applicant’s claims and contended that it terminated the employment of the Applicant on the ground that he was unwilling to perform the proposed redeployment role in circumstances where his initial role was not redundant.[2]
[2] CB 17-23; Amended Defence filed by the Respondent on 20 January 2021 and amended 25 February 2022.
The Applicant sought a declaration that the Respondent has contravened ss 340, 344 and 351(1) of the FW Act. The Applicant also sought: orders pursuant to s 545 of the FW Act for the payment of compensation to the Applicant; orders pursuant to ss 340, 334 and 351(1) of the FW Act for the payment of pecuniary penalties to the Applicant; orders pursuant to s 546(3) of the FW Act for payment of penalties imposed on the Respondent to be paid to the Applicant; orders pursuant to s 547 of the FW Act for the payment of interest; and costs.
ISSUES FOR DETERMINATION
The issues to be determined in this matter are as follows.
(a)Whether the Applicant’s role was redundant, and therefore the Respondent:
(i)Breached the NES by failing to pay the Applicant a redundancy severance payment; and
(ii)Breached cl 16 of the Applicant’s employment agreement by failing to pay the Applicant a redundancy severance payment;
(b)Whether the Respondent contravened s 340 of the FW Act by taking adverse action against the Applicant because he exercised his workplace rights;
(c)Whether the Respondent contravened s 344 of the FW Act by exerting undue influence or undue pressure on the Applicant.; and
(d)Whether any order for compensation, penalties, interest and costs is appropriate and if so, in what amount(s).
SYNOPSIS
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.
On 8 July 2020 and 9 July 2020 the Applicant discussed the future structure of the Respondent with Ms Kidd. The Respondent planned a ‘One Business, One Brand’ restructure where the Respondent’s Peak DMC Division, Intrepid Division and corporate services would internally amalgamate (1B1B Restructure). Subsequently, the Respondent offered the Applicant the role of General Manager of Global Product Operations (Redeployment Offer). The Applicant was reluctant to accept the Redeployment Offer due to his concern that the position of General Manager of Global Product Operations (Redeployment Role) was not suitable for him. The Applicant enquired about alternative options such as redundancy and Ms Kidd advised that the Applicant would not be offered a redundancy.
From 14 July to 16 July 2020 the Applicant was certified unfit for work.[5]
[5] CB 159-160.
Between 16 July and 17 July 2020 the Applicant had further discussions about the Redeployment Role and his entitlement to redundancy with Ms Kidd and Mr Beadle.[6]
[6] CB 161-162.
From 22 to 24 July 2020 the Applicant took certified sick leave.[7] On 22 July 2020 Mr Thornton called the Applicant and they discussed the Redeployment Role. On 23 July 2020 the Applicant received an email from Mr Thornton stating:[8]
[…]
Good to chat yesterday
As discussed, following your decision not to take the North America MD role, we have been seeking to find another suitable equivalent role for you with Intrepid. Its very important to me that we retain you as a leader in our company.
To that affect we’re delighted for you to take on the important role of General Manager Global Product & Operations. The role continues to report to the COO under your existing terms & conditions.
As mentioned yesterday in our call, these are very challenging times for all of us, so if you would like to take an extended break from work before taking up this role perhaps though until the end of this year, then I am open to this possibility.
[…]
[7] CB 163-165.
[8] CB 166-167.
Attached to Mr Thornton’s email referred to in the previous paragraph was a letter from Mr Thornton to the Applicant, dated 23 July 2020, providing further details to the Applicant about the Redeployment Role.[9] The letter stated:
[9] CB 168-171.
[…]
The purpose of this letter is to confirm our ongoing discussions regarding the realignment of the Intrepid Group and DMC business structure and what this means for you.
[…]
On accepting the MD North America role, your previous position of Global General Manager DMC Global, was not replaced given the planned strategic realignment of the DMC division back into the Intrepid Group structure as a part of our 1B1B (One Brand, One Business) strategy.
As discussed, we are eager to retain you in the business, given your breadth of experience, commercial acumen and overall commitment to the brand and our values. We have explored various opportunities within our global team and given you have indicated your inability to travel at this time and take up other existing global opportunities, we have identified a role in Melbourne that is mutually beneficial for both you and the business.
The position we would like to offer you is General Manager, Global Product and Operations. We feel this role is commensurate to your previous position of Global General Manager DMC Central. In this role, you will be employed under the same terms and conditions, including retaining your remuneration level, continued reporting line into the Chief Operations Officer, retention of previous direct reports, as well as inheriting an even larger team in the Global Product Tem. This role would have oversight of all Intrepid operations and product, including 3rd party operations and day tours as well as leading our joint venture investment companies. The job description is attached for your review.
We feel you have much to offer both the business and the staff within these teams, but also believe this role significantly reflects your future career aspirations and can hopefully drive that hunger you have for our business that you indicated when declining the MD role.
I look forward to you continuing to play an important leadership role as Intrepid navigates current challenges, and rebounds strongly in the months and years ahead.
[…]
On 23 July 2020 Ms Kidd sent a “Whatsapp” message to the Applicant notifying him that the Respondent was announcing the 1B1B Restructure the next day. Ms Kidd asked if the Applicant wanted to discuss the announcement of the 1B1B Restructure and the Applicant declined.[10] On 24 July 2020 the Applicant rejected the Redeployment Offer.[11]
[10] CB 172-173.
[11] CB 174-175.
On 24 July 2020 Ms Kidd advised the PEAK DMC Global team about the 1B1B Restructure and announced that the Applicant was going to be positioned in the Redeployment Role.
On 27 July 2020 the Applicant had a telephone conversation with Ms Tibb during which the Applicant advised that he wanted a redundancy package.
On 28 July 2020 Mr Thornton advised the Global Leadership Team of the Respondent’s 1B1B Restructure and announced that the Applicant had been repositioned in the Redeployment Role. From 28 July 2020 to 30 July 2020 the Applicant and Ms Kidd discussed over email the announcement of the 1B1B Restructure, the Applicant’s future at the Respondent and the Applicant’s leave.
From 30 July 2020 to 6 August 2020 the Applicant took sick leave.
On 30 July 2020 the Applicant sent an email to Ms Kidd stating “in terms of the proposed role itself, the major cause of concern (apart from those raised previously about the smaller focus and clearly less seniority) is being on the boards of the Chimu and KWE entities which I believe comes with serious personal risk – but purely for the sake of the comparison above I accept they should be left in”.[12]
[12] CB 434.
On 31 July 2020, while the Applicant was on sick leave, Ms Kidd advised the Applicant that he had been appointed into the Redeployment Role until 28 September 2020 under a JobKeeper provision of the FW Act in response to challenges imposed by the Covid-19 pandemic. Ms Kidd provided the Applicant with a comparison between the Initial Role and the Redeployment Role (Respondent’s Role Comparison).
On 4 August 2020, without the Applicant having accepted the Redeployment Offer, Mr Thornton announced the organisational 1B1B Restructure of the Respondent, which did not include the Initial Role and included the Applicant in the Redeployment Role.
On 6 August 2020 the Applicant emailed Ms Kidd advising that he would be on sick leave until 14 August 2020. Ms Kidd and the Applicant agreed that discussions regarding his role were to be put on hold.
On 13 August 2020 the Applicant’s role was updated to the Redeployment Role on the Respondent’s “People Portal”. In response, on 14 August 2020, the Applicant advised Ms Tibb that he would not be accepting the Redeployment Role and reiterated that the Initial Role was redundant.
Between 19 August 2020 and 21 August 2020 the Applicant was on certified sick leave.
On 21 August 2020 Ms Kidd emailed the Applicant’s work email requesting that by 4:00 pm on 25 August 2020 the Applicant confirm whether he accepted the Redeployment Role or alternatively whether he would resign. Ms Kidd’s email stated:[13]
Hi Charles
I want to stress that while we empathise with your current health issues, we need to resolve mailers relating to your employment as a priority.
Since your decision to decline the North America GM role in late June, we have adjusted your role to the position of GM Global Product & Operations. This position retains your seniority, remuneration, terms and conditions, reporting likes and status in the senior management team and was initially offered to you on 23 July after discussion with James.
While there is some change in your duties, this is reflective of our need to adjust operations in response to the serious challenges of the COVID-19 crisis. It is also in accordance with our legal rights to vary your position, duties or role under the terms of your employment contract dated 1 December 2016. To assist you in the process and in response to your queries, we have also provided detailed information explaining the GM Global Product and Operations role, the Job Description and comparison of roles on 23 July and 31 July. Accordingly there is no redundancy and we do not propose to continue to debate this issue.
I also confirm that you rejected the GM Global role 24 July and again on 5 and 8 August. This leaves the option of you resigning which we have discussed. While that is not our preferred outcome that is entirely your decision. We therefore request that you confirm by 4pm Tuesday 25 August whether:
•you accept the GM Global Product & Operations position; or
•otherwise confirm your resignation.
[13] CB 449-450.
If you accept, then we require you to return to work after your current absence.
If you resign then we will terminate your employment with effect from Friday 28 August 2020 and pay out the notice period along with your accrued annual and long service leave to that date.
If we don’t hear from you with a clear confirmation between the above options, we will proceed on the basis of your resignation above. To assist you in the process, we attach Job Description for GM Global Product & Operations, contract 1 December 2016 signed reference to said contract and Role Comparison Table.
Finally Charles, I want to reassure you that this request is based on our need to resolve all matters relating to the structure of our business going forward. Many of our people are under severe stress and we need to have clarity around future management roles and leadership. Our request is necessary in the circumstances and entirely unrelated to your current absence. We respect and acknowledge your right to access personal leave. We do however need to resolve your position promptly so as to confirm future responsibilities in the organisation.
[…]
From 24 August 2020 to 28 August 2020 the Applicant took further certified sick leave.
On 31 August 2020 the Applicant sent an email to Ms Kidd enquiring whether his employment had been terminated.[14] Ms Kidd responded by email on 31 August 2020, advising that no further action had been taken as the Applicant was not available for discussions as he had been on sick leave. Ms Kidd advised that both herself and Ms Tibb would be available to discuss the options available to the Applicant, as laid out in Ms Kidd’s email dated 21 August 2020.[15]
[14] CB 449.
[15] CB 448-449.
On 1 September 2020 the Applicant sent an email to Ms Kidd stating that he did not want to discuss the Redeployment Role any further and making an offer that he resign, provided that it be announced as a redundancy and he is paid accordingly.[16] Ms Kidd responded by email on 1 September 2020 advising that: “you have not been made redundant. You have also rejected the position offered to you”; and that the Applicant’s proposal was unacceptable. Ms Kidd advised the Applicant that given the circumstances, the Applicant’s employment with the Respondent was being terminated, effective 4 September 2020.[17]
[16] CB 448.
[17] CB 447.
On 4 September 2020 the Applicant was paid in lieu of notice and accrued leave entitlements, and his access to the Respondent’s system was disconnected. At the time of the Applicant’s dismissal he had been and was working in accordance with the terms and conditions of the Global General Manager – PEAK DMC Employment Agreement, dated 1 December 2016 (Employment Agreement).[18]
[18] CB 95-110.
From September 2020 onwards, after his dismissal, the Applicant applied for various jobs. In February 2021 the Applicant began employment as Chief Financial Officer at an IT Company.
HEARING BEFORE THE COURT
This matter was heard before the Court on 7, 8 and 9 March 2022 and took place via Microsoft Teams (Final Hearing).
Ms Zhou appeared as Counsel for the Applicant and Mr Howard appeared as Counsel for the Respondent.
The Court had before it an electronic Court Book numbering 523 paginated pages filed by the Applicant’s Solicitors on 1 March 2022.
DOCUMENTS RELIED ON BY THE PARTIES
The Applicant relied upon the following documents:
(a)The Application;
(b)The Amended Statement of Claim;
(c)The affidavit of the Applicant, affirmed and filed on 15 March 2021 (Applicant’s 15 March 2021 Affidavit);[19]
(d)The affidavit of the Applicant, affirmed 14 June 2021 and filed on 28 June 2021 (Applicant’s 28 June 2021 Affidavit);[20]
(e)The Applicant’s Outline of Submissions, filed 14 February 2022 (Applicant’s Submissions);[21] and
(f)The Applicant’s Outline of Closing Submissions, filed 9 March 2022 (Applicant’s Closing Submissions).
[19] CB 58-273.
[20] CB 274-297.
[21] CB 297-311.
The Applicant gave evidence in chief by adopting the Applicant’s 15 March 2021 Affidavit, the Applicant’s 28 June 2021 Affidavit and producing Exhibits A1 – A12. The Applicant was cross examined.
The Respondent relied upon the following documents:
(a)The Response – General Federal Law, filed 20 January 2021;
(b)The Amended Defence, filed 20 January 2021 and amended 25 February 2022 (Amended Defence);[22]
(c)The affidavit of Mr Beadle, affirmed and filed on 18 May 2021 (Beadle Affidavit);[23]
(d)The affidavit of Ms Tibb, affirmed and filed on 18 May 2021 (Tibb Affidavit);[24]
(e)The affidavit of Mr Thornton, affirmed and filed on 18 May 2021 (Thornton Affidavit);[25]
(f)The affidavit of Ms Kidd, affirmed and filed on 18 May 2021 (Kidd Affidavit);[26]
(g)The affidavit of Mr Darrell Andrew Wade, affirmed and filed on 20 May 2021 (Wade Affidavit);[27]
(h)The Respondent’s Outline of Submissions, filed 22 February 2022 (Respondent’s Submissions);[28] and
(i)The Respondent’s Annotated Outline of Closing Submissions, filed 9 March 2022 (Respondent’s Closing Submissions).
[22] CB 17-23.
[23] CB 488-494.
[24] CB 472-487.
[25] CB 351-404.
[26] CB 405-471.
[27] CB 496-505.
[28] CB 506-518.
At the Final Hearing the Respondent’s witnesses, Mr Thornton, Ms Kidd, Ms Tibb and Mr Beadle gave evidence in chief by adopting their respective affidavits, and each was cross examined. The Wade Affidavit was admitted into evidence unopposed, as Mr Wade was not required for cross examination.[29]
[29] Transcript P205:L35-P206:L2.
On 7 March 2022, the first day of the Final Hearing, the Court heard objections as to evidence at the commencement of the hearing. Counsel for the Respondent made submissions as to the admissibility of Annexures 5 and 61 of the Applicant’s 15 March 2021 Affidavit. The Court agreed with the Respondent’s objections and accordingly Annexures 5 and 61 were struck out of the Applicant’s 15 March 2021 Affidavit.[30]
[30] Orders made on 7 March 2022 by Her Honour Judge C.E. Kirton QC, Order 1.
The following documents were read into evidence during the Final Hearing and marked as follows:
(a)Exhibit A1, Applicant’s 15 March 2021 Affidavit;
(b)Exhibit A2, Applicant’s 28 June 2021 Affidavit;
(c)Exhibit A3, Applicant’s job description with Solution One;[31]
[31] CB 317-318.
(d)Exhibit A4, Applicant’s Contract of Employment with Solution One, dated 21 January 2021;[32]
[32] CB 319-324.
(e)Exhibit A5, Applicant’s payroll advice documents from Solution One Pty Ltd between 16 December 2021 to 26 January 2022;[33]
[33] CB 325-327.
(f)Exhibit A6, Applicant’s job application to the Australian Football League (undated);[34]
[34] CB 328-331
(g)Exhibit A7, Applicant’s job application (undated) to CBRE;[35]
[35] CB 332.
(h)Exhibit A8, Applicant’s job application (undated) to Deliciou;[36]
[36] CB 333.
(i)Exhibit A9, Applicant’s job application (undated) to Mornington Peninsula Early Childhood Centre;[37]
[37] CB 334-337.
(j)Exhibit A10, Applicant’s job application as General Manager of Transdev (undated);[38]
[38] CB 338.
(k)Exhibit A11, Applicant’s job application as Finance Director of Treasury Wines Estate (undated);[39]
[39] CB 339.
(l)Exhibit A12, Applicant’s job application as Senior Project Accountant of Pattison and Walker (undated);[40]
[40] CB 340.
(m)Exhibit A13, Colour copies of Annexures 3, 33 and 34 to Exhibit A1, Affidavit of the Applicant filed 15 March 2021;[41]
[41] CB 58-73.
(n)Exhibit R1, Thornton Affidavit;[42]
[42] CB 351-404.
(o)Exhibit R2, Organisational Structure of PEAK Destination Management Company Division in 2019;[43]
(p)Exhibit R3, Kidd Affidavit;[44]
(q)Exhibit R4, Organisational Structure of the Intrepid Group identifying the CEO Reports as at August 2019;[45]
(r)Exhibit R5, Organisational Structure of the PEAK Destination Management Company Division as at August 2019;[46]
(s)Exhibit R6, Organisational Structure of the PEAK Destination Management Company Division identifying the Applicant’s direct reports dated August 2019;[47]
(t)Exhibit R7, Tibb Affidavit;[48]
(u)Exhibit R8, Beadle Affidavit;[49]
(v)Exhibit R9, Wade Affidavit;[50]
(w)Exhibit R10, Letter from James Thornton to the Applicant dated 1 June 2020;[51] and
(x)Exhibit R11, Form F8A – Response to general protections application (undated).[52]
[43] CB 519.
[44] CB 405-471.
[45] CB 520.
[46] CB 521.
[47] CB 522.
[48] CB 472-487.
[49] CB 488-495.
[50] CB 496-505.
[51] CB 523.
[52] CB 343-350.
At the Final Hearing on 7 March 2022, I ordered that prior to the commencement of closing submissions, both parties file and serve an electronic copy of all case law and legislation relied upon in their respective filed submissions, together with an index of the case law and legislation referred to therein (7 March 2022 Orders).[53] Both parties complied with the 7 March 2022 Orders on 9 March 2022.
[53] Orders made on 7 March 2022 by Her Honour Judge C.E. Kirton QC, Orders 2 and 3.
On 9 March 2022 Judgment was reserved.
The Court has reviewed the transcript of the Final Hearing in detail when preparing these Reasons for Judgment.
REDUNDANCY
Relevant legislative provisions
Section 119 of the FW Act provides for payments in respect of notice and redundancy. While the Court notes that this not an unfair dismissal claim, genuine redundancy is defined in s 389 of the FW Act as follows:
Section 389 Meaning of Genuine Redundancy
389(1) A person’s dismissal was a case of genuine redundancy if:
(a)the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and
(b)the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.
(2)A person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within
(a) the employer’s enterprise; or
(b) the enterprise of an associated entity of the employer.
Whether there was redundancy in these circumstances depends on whether the Respondent no longer required the Initial Role to be performed, and if the Initial Role was redundant, whether it was reasonable for redeployment to occur. Redundancy is not a term with a fixed legal meaning. The term depends on the context and is a question of fact: Amcor Ltd v CFMEU (2005) 222 CLR 241, [12], [14] (Gleeson CJ, McHugh J), [50]-[52] (Gummow, Hayne and Heydon JJ); Collector of Customs v Agfa Gevaert Ltd (1996) 186 CLR 389, 395; UGL Rail Services Pty Ltd v Janik (2014) 246 IR 320; [2014] NSWCA 436 at [116] and [130]. Identification of the role and duties is crucial as it has been held that redundancy occurs when an employer no longer requires an employee’s job (by reference to their duties) to be performed by an employee of the employer, or after reorganisation an employee no longer has duties to discharge: Dibb v Commissioner for Taxation [2004] FCAFC 126; (2004) 136 FCR 388 at [43]. A redundancy does not necessarily occur where an employer reallocates some duties but retains the position (whether the role has the same or a different name). The Applicant must establish, on the balance of probabilities, that for practical purposes the Applicant’s role no longer existed. The question of whether the duties of the role changed substantially and left the role with no duties to discharge is one of substance not form.
A ‘job’ is determined by a collection of functions, duties and responsibilities: Jones v Department of Energy and Minerals; (1995) 60 IR 304: 308 (Ryan J), cited in Ulan Coal Mines Ltd v Howarth [2010] FWAFB 3488; (2010) 196 IR 32 at [17] (Boulton J, Drake SDP and McKenna C). In circumstances where an employer has gone through a restructure or reorganisation, the relevant question to determine whether a job has been made redundant, is whether the employee has any duties or functions left to discharge. A job can still be redundant where aspects of duties and functions are still being performed by other employees, including independent contractors: Dibb v Commissioner of Taxation [2004] FCAFC 126; (2004) 136 FCR 388, [43]-[44]; Suridge v Boral Window Systems Pty Ltd [2012] FWA 3126, [73]-[75]. An employer does not have to express any intention that the job no longer be performed by anyone before or at the time of the employee’s dismissal.
Was the Applicant’s Initial Role redundant?
The Applicant argued that the Initial Role was redundant for the following reasons:
(a)The Respondent underwent a restructure; and
(b)The Redeployment Role was not comparable to the Initial Role.
The Applicant argued that the Redeployment Role was not a continuance of his duties in the Initial Role for the following reasons:
(a)The Initial Role managed a cross functional team which oversaw over 25 legal entities. The cross functional team no longer existed and the Redeployment Role no longer involved functional responsibilities including finance, sales, contracting and systems.
(b)The Initial Role had over five (5) direct reports and the Redeployment Role retained one (1) direct report. The Initial Role involved spending 30-40% of the time managing an inexperienced finance team.
(c)The Initial Role sat within the Peak DMC Division and provided corporate functions to the Peak DMC Division within the Respondent. The Peak DMC Division no longer existed as it was subsumed into the Respondent and corporate functions were not the focus of the Redeployment Role.
(d)The Initial Role focused on corporate functions and travel industry specific products. The Redeployment Role added new duties around products and product strategy but the Applicant would lose the breadth of his functions.[54]
(e)The Redeployment Role was not commensurate with his skillset.[55] The Applicant is a chartered accountant with a finance background, which was integral to the Initial Role as the role was focused on delivering products developed by the product team on the ground and engaging sales managers within different regions. The Redeployment Role meant he lost responsibility and ownership of finance which would be detrimental to his future career prospects as a chartered accountant.
[54] Transcript P45:L19-21.
[55] Transcript P45:L29-30.
In the event the Court found that the Initial Role was redundant, the Applicant argued that it was not reasonable to be redeployed into the Redeployment Role for the same reasons listed in the previous paragraph.
The Respondent submitted that the job performed by the Applicant was not redundant on termination of his employment. The Respondent submitted that the Initial Role was modified as a result of the 1B1B Restructure but was not redundant for the following reasons:
(a)The relevant question was whether the Respondent “no longer required the job done by the employee to be done by anyone” at the time of the Applicant’s dismissal. At the time the Applicant was dismissed, the Applicant was appointed to the Redeployment Role and the Respondent needed (and had encouraged) him to perform the Redeployment Role.
(b)The word “job” refers to the “collection of functions, duties and responsibilities entrusted, as part of the scheme of the employer’s organisation, to a particular employee” and the substance of the Initial Role was primarily the same as the Redeployment Role.
(c)The Applicant had duties to perform and discharge after the restructure.
(d)The core management responsibilities of the Initial Role remained and responsibilities were added to the Redeployment Role which made the role more diverse.
(e)The Initial Role did not perform day-to-day functions and did not require a chartered accountant. This was the same for the Redeployment Role.
What role was the Applicant performing at the time of his dismissal?
The Respondent contended that the Applicant was in the Redeployment Role at the time of his termination. The Applicant contended that he had not accepted the Redeployment Role but also based his arguments on the premise that the Initial Role no longer existed.
The Applicant was offered the Redeployment Role on 8 July 2020 and the Respondent began internally announcing the 1B1B Restructure from 24 July 2020. On 31 July 2020 the Respondent issued the Applicant with the JobKeeper Direction, which would have ceased to have effect on 28 September 2020. The Applicant expressly rejected the Redeployment Role on 24 July, 5 August and 14 August 2020.
The Applicant claimed that on 31 August 2020, after returning from leave, he was still performing his Initial Role.[56] The Applicant deposed that he was “dealing with some of the functions that [he] had previously managed”.[57] Between 1 September and 4 September 2020 the Applicant deposed to closing off “loose ends” and “trying to handover frantically”.[58]
[56] Transcript P16:L28-29.
[57] Transcript P16:L32-33.
[58] Transcript P16:L42-44.
The Respondent’s witnesses were unclear about what duties the Applicant was effectively performing during 2020 when he was not on personal leave. Given: the state of this evidence in relation to the Applicant’s daily responsibilities during the first half of 2020; the implementation of the 1B1B Restructure; and the operation of the JobKeeper Direction from 31 July 2020 to the Applicant’s dismissal on 4 September 2020; I am satisfied that the Applicant was appointed to and performing the Redeployment Role.
Was the Initial Role the same ‘job’ as the Redeployment Role?
The contentious issue in this matter is whether the Initial Role was redundant after the Respondent implemented the 1B1B Restructure. One of the following scenarios is applicable:
(a)The Initial Role was no longer required to be performed and was redundant. The Redeployment Role required the Applicant to perform a different job. The Applicant is therefore entitled to redundancy entitlements. The reasonableness of redeployment to the Redeployment Role would need to be considered.
(b)The Initial Role was required to be performed but was renamed and varied to reflect the 1B1B Restructure. The Redeployment Role required the Applicant to perform the same job. Therefore the Applicant is not entitled to redundancy entitlements.
The Respondent’s Role Comparison can be summarised as follows:[59]
[59] CB 193-196.
(a)The reporting line is the same for both roles;
(b)Both roles are within the Global Leadership Team;
(c)Both roles are permanent full-time (38 hours per week);
(d)Both roles are located at the Respondent’s Melbourne head office;
(e)Both roles have the same remuneration package of $165,967.26, comprising a base salary of $135,270.57 and share rights;
(f)The Initial Role was within the Peak DMC Division which had 210 employees. The Redeployment Role is within the Intrepid Group, as all divisions merged due to the 1B1B Restructure, which has 460 employees;
(g)Both roles have four (4) direct reports. The roles of the direct report employees have been altered;
(h)The Initial Role had six (6) indirect reports (three (3) finance and three (3) operations). The Redeployment Role has 14 direct reports (three (3) operations and 11 product); and
(i)In terms of qualifications, skills and experience, both roles require similar qualities, including:
(i)A degree qualification, preferably tertiary management qualifications;
(ii)Senior management experience in a global setting;
(iii)Business, financial and people management experience;
(iv)Interpersonal and communication skills;
(v)Demonstrated leadership; and
(vi)Change management capability.
The fundamental elements of the roles are critical to the determination of whether the Initial Role was redundant. The Respondent’s Role Comparison described the following:[60]
[60] CB 195-196.
(a)The Initial Role was:
(i)Responsible for the performance of the PEAK DMC network, overseeing functional policy development and implementation;
(ii)Responsible for the implementation of the management of day to day business of the Respondent;
(iii)To provide leadership to the Global functional managers and to provide direction in development of operational policy and process to maximise business performance; and
(iv)To report to the Managing Director - PEAK DMC and to deputise this role.
(b)The Redeployment Role:
(i)Is responsible for Product and Operations across the entire Group and ensures commercial alignment of all activities within the departments by creating and implementing global product and operations strategies;
(ii)Is primarily responsible for developing and implementing the Respondent’s global product strategy;
(iii)Is primarily responsible for operational best practice, policy and process for on the ground operations in location;
(iv)Reports to the Chief Operating Officer and will deputise the role; and
(v)Works closely with the Chief Operating Officer in representing the business on company boards relating to joint venture investment companies.
In the Applicant’s Inaccuracies in the Intrepid Comparison Document the Applicant disputes the accuracy of the Respondent’s Role Comparison and provides his own explanation as to why the roles are not satisfactorily comparable (Applicant’s Role Comparison).[61]
[61] CB 197-199.
The 1B1B Restructure of the Respondent involved the three divisions becoming one brand. Prior to the 1B1B Restructure in the Initial Role the Applicant provided administrative and commercial corporate functions to support other streams of the Peak DMC Division which were organised by reference to continent or area.[62] The Applicant deposed to spending 30 to 40% of his role heavily involved in finance on a day to day basis with responsibility for the performance of financial aspects of the Peak DMC Division.[63]
[62] Transcript P28:L33-P29:L17.
[63] Transcript P31.
The 1B1B Restructure streamlined the business. An email on 23 July 2020 sent to the Applicant stated “we’re delighted for you to take on the important [Redeployment Role]. This role continues to report to the CEO under your existing terms and conditions”.[64] Clause 2 of the Employment Agreement allowed for variations of the Applicant’s duties, position, role and levels of responsibility. Further, at the request of the Applicant, the Respondent removed the investments function from the Redeployment Role. It is evident that the Respondent required the Redeployment Role to be performed.
[64] CB 438.
The evidence does not support the Applicant’s evidence that by or around July 2020 the Respondent redistributed the duties and responsibilities of the Initial Role to other employees, and in doing so stripped the role of its substance. I am satisfied that the evidence supports that the Respondent required that the Initial Role be performed. However, given the 1B1B Restructure, the duties and responsibilities carried out by the Initial Role were required to shift and adjust to suit the IBIB Restructure. As deposed by the witnesses for the Respondent, the Applicant was left with work to perform and job functions which were only partly distributed to other employees. The Applicant deposed that when he was not on leave in 2020, he carried on similar, if not the same tasks, before and after he was appointed to the Redeployment Role. The fact that the Respondent’s witnesses could not clearly identify what tasks the Applicant was directed to do when appointed to the Redeployment Role implies that it was not necessary for the Applicant to learn a new and significantly different job.
The substance of the job is providing financial direction and expertise to the Respondent, and alongside the Global Leadership Team, provide strategy to and be responsible for the Respondent’s commercial activities, operational practices, policies and procedures, and a specific division within the Respondent. Whilst the position of the role within the Respondent’s structure and the nuances of the role changed, the role continued to be that of a senior financial manager responsible for a division of the Respondent’s day to day business, commercial activities and strategy.
It cannot be said that the Redeployment Role did not have all of the responsibilities that the Applicant had in the Initial Role. The responsibilities were varied to address the 1B1B Restructure, however the responsibilities of the Initial Role were not reallocated to other employees. The size and nature of the team that the Applicant oversaw changed however this does not mean that the Applicant’s job was changed or no longer required. The Applicant has not established on the balance of probabilities that for practical purposes the Initial Role no longer existed.
The Applicant’s claims that the Respondent breached clause 16 of the Employment Agreement and the NES must be dismissed. Given the finding that the Redeployment Role was in substance the same job as the Initial Role, it is not necessary to discuss the reasonableness of redeployment and make a finding about whether the Applicant’s refusal to accept the Redeployment Role was reasonable.
ADVERSE ACTION
Legislative provisions
Item 1 of section 342 of the FW Act defines adverse action as follows:
342(1)The following table sets out circumstances in which a person takes adverse action against another person.
Meaning of adverse action Item Column 1
Adverse action is taken by…Column 2
if…1 an employer against an employee 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 and other employees of the employer.
The Respondent is a national system employer and the Applicant was an employee within the meaning of the FW Act. There is no dispute as to the authority of Mr Thornton as the decision-maker in relation to the termination of the Applicant.
Section 340 of the FW Act precludes “adverse action” being taken against another because, amongst other things, that person has exercised, or purported to exercise, a workplace right. Section 340 relevantly provides that:
Section 340 Protection
340(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.
Section 341(1) of the FW Act defines the circumstances in which a person has a workplace right as follows:
Section 341 Meaning of workplace right
341(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.
Meaning of process or proceedings under a workplace law or workplace instrument
(2)Each of the following is a process or proceedings under a workplace law or workplace instrument:
(a) a conference conducted or hearing held by the FWC;
[…]
Sections 360 and 361 of the FW Act facilitate proof by an applicant of a claim of adverse action. Section 360 recognises that some adverse action might be taken for a variety of reasons, including reasons unrelated to the reasons that Part 3-1 of the Act proscribes. In order to be actionable under Part 3-1 of the FW Act, it is sufficient that relevant adverse action is taken for reasons that include such proscribed reasons, provided that the proscribed reason was a substantial and operative reason.
Section 361 creates a rebuttable presumption concerning the proof, in any given case, of the reasons for which adverse action was taken. If, in an action alleging conduct was engaged in in contravention of Part 3-1 of the FW Act, it is alleged that a person took or is taking action for a particular reason or with a particular intent, and taking that action for that reason or with that intent would constitute a contravention of that Part 3-1 of the Act, it is presumed that the conduct was engaged in for that reason, unless or until the person who engaged in it proves otherwise.
Given adverse actions are civil claims, the issues for determination are decided on the balance of probabilities. The burden of proof for elements of the claim are on the Applicant, except in relation to the reason for the adverse action. The reason for the adverse action is presumed to be as alleged by the Applicant unless the Respondent proves otherwise. The reverse onus can be discharged if the Respondent gives evidence that a prohibited reason was not a substantive reason for the adverse action and the Court accepts that evidence.
The leading authority on adverse actions is Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500; [2012] HCA 32. In that case, French CJ and Crennan J said:
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-make 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.
(Citations omitted)
The leading authorities of: Board of Bendigo Regional Institute of Technical & Further Education v Barclay & Anor [2012] HCA 32; State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184; and Construction, Forestry, Mining and Energy Union v De Martin & Gasparini Pty Limit (No 2) [2017] FCA 1046 provide the following relevant principles:
(a)The central question is one of fact and can be articulated as: why was the adverse action taken?
(b)The focus of the enquiry is the actual reason or reasons which motivated the decision-maker and whether the alleged prohibited reason was a substantial and operative reason for taking the adverse action.
(c)The Court is not required to determine whether some proscribed reason had subconsciously influenced the decision-maker.
(d)The inquiry is not concerned with mere causation, in the sense that it is not sufficient that there is a factual or temporal connection, however this may necessitate some consideration.
(e)The test does not involve any objective element as the Court must make a finding of fact as to the true reasons of the decision-maker.
(f)Direct testimony by the decision-maker greatly assists the enquiry but the evidence of the decision-maker may be determined to be unreliable. The evidence of the decision-maker may be accepted as reliable and discharge the burden imposed on the employer by s 361 of the FW Act.
(g)Where there are multiples reasons for adverse action, the prohibited reason must a substantial and operative factor.
(h)It is not necessary for the decision-maker to establish that the reason for the adverse action was entirely dissociated from the relevant protected workplace right.
(i)The Court must have regard to all the relevant facts and circumstances and inferences available.
Applicant’s cause of action
In the Amended Statement of Claim the Applicant claimed that he was dismissed from employment for prohibited reasons. The Applicant alleged that he was dismissed because he exercised his workplace rights, namely his workplace right to redundancy, to take personal leave and to make complaints and enquiries.[65]
[65] Transcript P2:L16-17.
The Respondent denied that the Applicant was dismissed for any of the alleged prohibited reasons. The Respondent advanced that the Applicant was dismissed because of his refusal to perform the Redeployment Role.
Did the Applicant exercise workplace rights?
The Applicant relied on the following workplace rights:[66]
(a)The right to redundancy;
(b)The right to make complaints and inquiries in relation to his employment; and
(c)The right to take personal leave.
[66] Applicant’s Amended Statement of Claim filed 20 November 2020 and amended 11 February 2022, [60].
The right to redundancy
The Applicant claimed that where a role has become redundant there is a workplace right to redundancy under the FW Act, which entails a right to decline a proposed redeployment role and a right to receive redundancy pay. The Applicant submitted that he exercised this workplace right by refusing to accept the Redeployment Role and requesting redundancy pay. The Applicant also referred to s 120 of the FW Act which provided that the Respondent could reduce redundancy pay by the reason that acceptable employment was obtained for the Applicant, and noted that there would have been a dispute about whether the Redeployment Role was acceptable.[67] The Applicant did not identify a source regarding the right to decline a proposed redeployment role.
[67] Transcript P2:L40-43.
The Respondent’s position was that the Applicant has not established this workplace right. The Respondent advanced that it is “at a loss to understand how all of the pleaded workplace rights came to be in existence”.[68]
[68] Respondent’s Outline of Submissions filed 22 February 2022, [55].
As discussed above, the Initial Role was not made redundant and therefore the Applicant had no right to redundancy or redundancy pay.
The right to take personal leave
The Applicant contended that he exercised his workplace rights by taking sick leave from risks to mental health in the workplace. The Applicant identified the right to take personal leave under the FW Act, although the Applicant did not identify the legislative provision within the FW Act, and the right to work in a safe environment without risk to health, including mental health, citing the “Occupational Health and Safety Act”.
The Respondent accepted that the Applicant exercised his right to take sick leave throughout 2020. There is a right to take personal leave under the FW Act and the relevant prohibition on employers under s 352 for dismissing an employee for taking a temporary absence from work.
The right to make complaints and enquiries in relation to employment
The Applicant submitted that he exercised this workplace right by making complaints regarding redundancy, requesting information about redundancy and enquiring about redundancy pay. The Respondent does not dispute that the Applicant had discussions with the Respondent about redundancy and his role and did not deny the fact of complaints or inquiries being made. Rather, as discussed above, the Respondent contended that the Applicant has not established that his actions amounted to complaints or inquiries, and denied that the complaints or inquiries were workplace rights.
The ability to make a complaint is a workplace right under s 340 of the FW Act. ‘Complaint’ is not defined in the FW Act. The following principles apply in relation to a complaint or inquiry:
(a)The complaint or inquiry must be directed to the employer: Murrihy v Betezy.com.au Pty Ltd (2013) 238 IR 307; [2013] FCA 908;
(b)The complaint or inquiry must have been in relation to employment and founded on a source of entitlement: Cigarette & Gift Warehouse Pty Ltd v Whelan [2019] FCAFC 16 at [28] and [33]; Alam v National Australia Bank Limited [2021] FCAFC 178; (2021) 288 FCR 301 at [74] and [97];
(c)The relationship between the specific complaint or inquiry and the employee’s employment may be indirect as well as direct: Construction, Forestry, Mining and Energy Union v Pilbara Iron Co (Services) Pty Ltd (No 3) [2012] FCA 697; and
(d)The ability to make a complaint can be sourced from legislative provisions that are not workplace laws, contractual terms and the general law.
The Applicant identified that he made the following complaints and inquiries during his employment:[69]
(a)Making inquiries about the nature, scope and function of the Redeployment Role offered to him following the Respondent’s 1B1B Restructure;
(b)Making complaints and inquiries about the fact that the Initial Role, as set out in his contract of employment, was redundant and about his entitlement to redundancy pay;
(c)Making complaints about the Respondent’s harassment of, and undue influence and undue pressure on him while he was on sick leave; and
(d)Refusing to accept the Redeployment Role.
[69] Applicant’s Outline of Closing Submissions, filed 9 March 2022, [7].
On the evidence before the Court the Applicant made the complaints and inquiries as follows:
(a)During conversations with Ms Kidd on 8 and 9 July 2020;
(b)During discussions with Ms Kidd and Mr Beadle on 16 and 17 July 2020;
(c)During a call with Mr Thornton on 22 July 2020;
(d)During a call with Ms Tibb on 27 July 2020;
(e)Over emails with Ms Kidd from 28 to 30 July 2020; and
(f)Over email with Ms Tibb on 13 and 14 August 2020.
The Applicant directed all complaints and inquiries to his employer. The Applicant deposed that he exercised this right by making complaints and inquiries about the nature, scope and function of the Redeployment Role, redundancy, the harassment he was receiving about accepting the Redeployment Offer and the pressure he felt while on sick leave. The Applicant’s discussions are clearly in relation to his employment. The Applicant’s ‘discussions’ express his concern with the Redeployment Role and his treatment in regards to his role. The communication of the experience and queries regarding the responsibilities, rights and the role of an employee clearly fall within the scope of employment. The Applicant’s discussions can be characterised as an expression of genuine grievances that he made in good faith and for a proper purpose.
The Applicant is not required to precisely and explicitly identify a source of entitlement in a workplace law or instrument. It is sufficient that the Applicant’s complaints or inquiries be founded in an employee right, whether instrumental or otherwise. The substance of the Applicant’s complaints and inquiries was redundancy and the relevant legal obligations and entitlements related to redundancy. The Applicant referred to his rights grounded in his Employment Agreement, his right to redundancy entitlements and the NES. The complaints and inquiries have a legal underpinning and satisfy the requirements of a complaint or inquiry under s 341 of the FW Act.I am satisfied that the complaints and inquiries made by the Applicant should be properly characterised as complaints under ss 340 and 341 of the FW Act and therefore the Applicant exercised his workplace rights.
The Applicant has identified a workplace right and shown that he has exercised his workplace right to make a complaint and inquiry, and his workplace right to take personal leave.
Did the Respondent take adverse action against the Applicant?
The Amended Statement of Claim alleged that adverse action included not being paid redundancy pay, harassment and termination. However, at the Final Hearing and in the Applicant’s Closing Submissions, the Applicant only advanced adverse action in the form of dismissal.
The Respondent did not dispute that the dismissal was adverse action as defined in s 342(1) of the Act. The Applicant’s employment with the Respondent was terminated on Friday 4 September 2020.
Reasons for the Applicant’s dismissal
It is not contested that the relevant decision-maker is Mr Thornton. Mr Thornton gave evidence as to his reasons for dismissing the Applicant. The reasons of people who may have influenced the final decision should also be taken into account: Construction, Forestry, Mining and Energy Union v Clermont Coal Pty Ltd [2015] FCA 1014. On the evidence before the Court, no other people influenced Mr Thornton’s decision. The discussions of Ms Kidd and Ms Tibb with the Applicant were relevant to Mr Thornton deciding to terminate the Applicant, however there is no evidence that they expressed their opinions about the Applicant’s employment status to Mr Thornton. Ms Kidd actioned the termination of the Applicant at the direction of Mr Thornton. I accept that Mr Thornton was the sole decision-maker and was not influenced by the reasons of others.
For the purposes of the Application, the reasons of Mr Thornton are important to determine whether any prohibited reasons under the FW Act were substantial and operative reasons for the Applicant’s dismissal. If the reasons for the decision to dismiss the Applicant do not include a prohibited reason, the Applicant cannot succeed in his application.
Respondent’s Reason
The Respondent submitted that the substantial and operative reason the Applicant was dismissed was because of his refusal to perform the Redeployment Role. Mr Thornton deposed that he had no choice but to accept the Applicant’s ‘repudiation’ and elected to terminate his employment. The Respondent provided evidence that attempts were made to negotiate with and support the Applicant but ultimately he would not comply and refused to perform the role he was appointed to.
Prohibited Reasons
Counsel for the Applicant described the circumstances as unexceptional in that the travel company was undergoing restructure and a senior manager’s role lost its substantive duties. The Applicant described that he was offered redeployment but did not consider the Redeployment Role as an acceptable alternative. The Applicant maintained that when he communicated his refusal of the Redeployment Offer to the Respondent he should have been terminated by way of redundancy.[70] The Applicant alleged that because he made complaints and inquiries about redundancy instead of accepting the Redeployment Role and took personal leave during 2020 Mr Thornton decided to terminate his employment.
[70] Transcript P2:L33-39.
Reason for Dismissal
The focus of the Court’s inquiry is the reason or reasons of Mr Thornton and whether the prohibited reasons were the substantial and operative reasons for his decision to terminate the Applicant’s employment. It is not necessary for the Respondent to establish that the prohibited reasons advanced by the Applicant were entirely disassociated from the Applicant’s exercise of his workplace rights: The Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32 at [62].
The Applicant has provided no evidence to support his contention that he was dismissed due to exercising his workplace right to take personal leave, and has provided little evidence to support his claim that he was dismissed because he exercised his workplace right to make complaints and inquiries.
I accept the Respondent’s evidence that the Applicant refused to accept, and carry out the duties of, the Redeployment Role. The Applicant had been appointed to the role under the JobKeeper Direction and there is no evidence that the Applicant complied with that direction. The Respondent negotiated with the Applicant for a period of two months in an attempt to come to a compromise about the Applicant’s role and retain the Applicant. The Respondent offered to, and did, tailor aspects of the Redeployment Role to the Applicant’s wishes and explained in detail how the Redeployment Role compared to the Initial Role.
Mr Thornton and other senior employees were aware that the Applicant did not want to accept the Redeployment Offer and had expressed concerns and asked questions about his role. The Respondent actively and genuinely engaged with the Applicant regarding his complaints and inquiries about the Redeployment Role, redundancy and the changing work environment. The Respondent provided details and information when relevant and/or requested and had numerous conversations with the Applicant to inform him and assist him in making his decision about performing the Redeployment Role. The evidence demonstrates that the Respondent negotiated with the Applicant and attempted to address his concerns. The evidence does not support that Mr Thornton was aggrieved by the Applicant’s complaints and inquiries, and therefore determined that dismissing the Applicant was the solution.
The Applicant took issue with the Respondent sharing, without his consent, with other employees that he had been appointed to the Redeployment Role. Whilst I understand that the stress the Applicant may have felt as he had not accepted the Redeployment Role and the Respondent was aware of his opposition to the Redeployment Role, the fact of the matter is that under the JobKeeper Direction and in line with the 1B1B Restructure the Applicant was appointed in the Redeployment Role. Further, I accept the explanations provided by Mr Thornton and Ms Kidd about publishing the 1B1B Restructure with the inclusion of the Applicant do not support the Applicant’s contention. Covid-19 presented unprecedented challenges, especially to the travel industry, which required the Respondent to provide certainty and clarity to its employees. Mr Thornton and Ms Kidd acted on the basis that the Applicant’s inclusion in the restructure was aimed at highlighting his importance and providing clarity to the Respondent’s employees.
I also accept that Mr Thornton and Ms Kidd acted on the understanding that Clause 2 of the Employment Agreement and the JobKeeper Direction allowed for variation of the Applicant’s role and his repeated refusal to perform this role was lawful grounds for terminating his employment. Irrespective of the legal threshold for repudiation, Mr Thornton made his decision to dismiss the Applicant based on his genuine and reasonable belief that the Applicant was refusing to perform his role.
Mr Thornton and the other senior managers were aware that the Applicant was taking periods of personal leave throughout 2020. There is no evidence that Mr Thornton, or any of the Respondent’s employees, took issue with the Applicant taking personal leave and the Counsel of the Applicant did not put this to any of the witnesses under cross examination. The Respondent respected and was supportive of requests for leave from the Applicant and, even though communications were sent during his leave out of necessity, allowed the Applicant to engage in discussions when he was ready and of his own initiation. The Court notes that Mr Thornton offered that the Applicant take 12 months leave without pay for his wellbeing but the Applicant dismissed this offer as not feasible.[71]
[71] Transcript P51:L3-6.
Given the lack of evidence supporting the Applicant’s contentions and the credible, coherent and documented evidence of the Respondent, I am satisfied that the Respondent has rebutted the presumption s 361 of the FW Act. I accept the evidence that the Applicant’s complaints and inquiries and periods of personal leave did not form a reason in the mind of Mr Thornton for his decision to dismiss the Applicant. I find that on the balance of probabilities Mr Thornton did not act for any reason which included any of the workplace rights pleaded.
UNDUE INFLUENCE OR UNDUE PRESSURE
Legislative provisions
An employer must not exert undue influence or pressure on an employee in relation to the matters set out in s 344 of the FW Act. Section 344 provides that:
344 Undue influence or pressure
An employer must not exert undue influence or undue pressure on an employee in relation to a decision by the employee to:
(a)make, or not make, an agreement or arrangement under the National Employment Standard; or
(b)make or not make an agreement or arrangement under a term of a modern award or enterprise agreement that is permitted to be included in the award or agreement under subsection 55(2); or
(c) agree to, or termination, an individual flexibility arrangement; or
(d) accept a guarantee of annual earnings; or
(e)agree, or not agree, to a deduction from amounts payable to the employee in relation to the performance of work.
Did the Respondent exert undue influence or undue pressure on the Applicant
The Applicant alleged that the Respondent contravened s 344 of the FW Act by exerting undue influence or undue pressure on the Applicant to accept an arrangement under the NES. The Applicant claimed that the arrangement in question was the Applicant accepting redeployment and forgoing redundancy pay. The Applicant deposed that the Respondent exerted pressure by publicly and falsely advising other employees that the Applicant had accepted the Redeployment Role, advising the Applicant that if he did not accept the Redeployment Role he should resign, advising the Applicant he would not get redundancy pay and persisting in pressuring the Applicant to accept the Redeployment role.
The Applicant identified instances such as repeated attempts to announce the Applicant’s appointment to the Redeployment Role to employees of the Respondent and the email from Ms Kidd on 21 August 2020 indicating that if the Respondent did not get a response from the Applicant they would consider him to have resigned.[72]
[72] Applicant’s Outline of Closing Submissions, [61]-[62].
The Respondent submitted that conceptually the Applicant’s claim does not attach any agreement or arrangement and factually does not establish undue influence or pressure Therefore, the Respondent submitted that the claim is misconceived and should be dismissed.
The Applicant has failed to explain how his claims fall within s 344 of the FW Act. The Applicant does not raise matters or provide evidence of the Respondent pressuring or influence the Applicant to make a decision in respect of any of the items set out in (a) to (e) of s 344 of the FW Act. Section 344(a) applies to agreements such as flexible working arrangements, annual leave agreements and reasonable additional hours of work. There is no agreement or arrangement in the operation of section 119(1) to which section 344(a) attaches. Section 119(1) only confers a monetary entitlement when an employer no longer requires the employee’s job to be performed by anyone.
Further, the Court notes that the Respondent sought cooperation from the Applicant and exercised its statutory powers under section 789GE as well as the contractual power in clause 2 of the Employment Agreement. The Court also notes that whilst the Respondent included the Applicant in its published restructure of the business without the Applicant’s consent, the Respondent respected the Applicant’s leave periods and undertook months of negotiation with the Applicant in order to come to a satisfactory compromise about the Redeployment Role.
On the basis of the Applicant’s claim this allegation cannot be maintained as the evidence before the Court does not establish the factual basis to support the Applicant’s claim. I am satisfied that the Respondent did not place undue pressure or undue influence on the Applicant in contravention of s 344 of the FW Act.
LOSS AND DAMAGES
The Applicant contended that he has suffered loss or damage as a result of the Respondent’s contravention of the FW Act, including but not limited to:
(a)Redundancy in the amount of 13 weeks as per NES which equates to $47,705;
(b)Compensation for adverse action equivalent to 12 months’ pay which equates to $190,821;
(c)Reputational damage;
(d)Stress and anxiety; and
(e)Diminished employment prospects.
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).
I certify that the preceding one hundred and twenty-one (121) numbered paragraphs are a true copy of the Reasons for Judgment of Her Honour Judge C.E. Kirton KC. Associate:
Dated: 24 August 2023
0
16
0