McHenry v Angels Care (Australia) Pty Ltd
[2022] FedCFamC2G 236
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
McHenry v Angels Care (Australia) Pty Ltd [2022] FedCFamC2G 236
File number(s): MLG 1300 of 2020 Judgment of: JUDGE BURCHARDT Date of judgment: 6 April 2022 Catchwords: INDUSTRIAL LAW – Claims for unpaid wages, annual leave and superannuation, together with contractual claim for wages in lieu of notice – additional claims in respect of alleged adverse action constituted by termination of employment – forensic difficulties arising out of failure by parties to cross-examine on relevant issues – applicant’s evidence preferred to respondents’ – applicant generally successful but claim for 6 months’ wages as compensation not granted because of applicant’s failure to mitigate her loss. Legislation: Fair Work Act 2009 (Cth)
Evidence Act2008 (Vic)
Cases cited: Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; [2012] 248 CLR 500 Division: Division 2 General Federal Law Number of paragraphs: 67 Date of hearing: 21 March 2022 Place: Melbourne Counsel for the Applicant: Ms Hinchliffe Solicitor for the Applicant: Princeton Legal The First and Second Respondents: The Respondents are self-represented by the Second Respondent. ORDERS
MLG 1300 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: NICOLE RUTH MCHENRY
Applicant
AND: ANGELS CARE (AUSTRALIA) PTY LTD (ACN 615 605 537)
First Respondent
GEOFFREY HARRISON
Second Respondent
ORDER MADE BY:
JUDGE BURCHARDT
DATE OF ORDER:
6 APRIL 2022
THE COURT ORDERS THAT:
1.The respondents pay the applicant within 30 days:
(a)$9,036 wages for the period 13 December 2019 to 4 January 2020;
(b)$1,806 annual leave for the period 5 January 2020 to 7 January 2020;
(c)$3,250 accrued annual leave;
(d)$13,052 in lieu of notice; and
(e)$8,333 in respect of car allowance;
2.The respondents pay within 30 days to a superannuation fund nominated by the applicant $5,627.90 in respect of unpaid superannuation.
3.Applicant to file and serve written submissions as to penalties on or before 20 April 2022.
4.Respondent to file and serve written submissions as to penalties on or before 4 May 2022.
5.The matter be listed to this court for hearing before Judge Burchardt on 9 May 2022 at 10.00am.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE BURCHARDT
INTRODUCTORY
This is a very unusual matter arising out of a brief period of employment on the part of the applicant, Ms McHenry, with the first respondent (“Angels Care”). The matter has been bedevilled by substantial delays arising out of, essentially, the respondents’ failure to properly engage with the proceeding. Indeed, I refused an adjournment request for reasons given at the start of the trial. Not only has the matter been complicated by the self-representation of the respondents, but there are serious deficiencies in the way the evidence has been placed before the Court and the applicant's case in part has not really been articulated in a fashion consistent with statute.
Put shortly, the applicant seeks payment of wages and superannuation allegedly not paid, and seeks remedies arising out of asserted adverse action. In respect of the adverse action she seeks six months worth of salary.
For the reasons that follow, I think the applicant has made good her claims for unpaid wages, annual leave and superannuation and was indeed the subject of adverse action in that her employment was terminated when she raised the possibility of a pay increase.
THE EVIDENCE
One matter not formally proved is the incorporation of the respondent, but it is plain from the letter appointing Ms McHenry to her position of national general manager dated 5 August 2009, (annexure to the applicant's affidavit affirmed 25 January 2022), that Angels Care is indeed a company.
Ms McHenry was appointed to that position and the terms of the engagement were relatively clear. She was paid a package with a total net income of $9000 a month and "a car to the value of $20,000" including registration, insurance, maintenance and fuel costs or travelling allowance at the rate of 80 cents per kilometre. The offer expressly provided:
This package will be reviewed by AC after 3 months from the date of your commencement and not less than biannually thereafter.
It seems from the materials filed and more particularly perhaps the evidence given at Court that at or about the time Ms McHenry commenced employment, a number of other employees (the number is by no means clear to me) left their employment with Angels Care and set up in competition. This unsurprisingly produced a certain amount of difficulty. As the case was presented in Court (the respondents having failed at any time to file any meaningful formal defence let alone any counter-claim despite opportunities being given to them to do so), the case was run on the footing that the applicant was performing very poorly in the exercise of her duties. It was particularly put to her in cross-examination that she had failed to address the issue of debts receivable, that the amount of business going through the company had very significantly diminished and the company was unprofitable as a result. I will return to that aspect of the dispute in due course.
The applicant has deposed in her affidavit 25 January 2022 at paragraphs 17-20:
On or around 12 November 2019, I asked Geoffrey whether we could “now sit down and speak about my salary, as agreed.”
We had a short discussion in-person at a resort in Malaysia, and he asked what I was expecting. I said, inter alia, “a $250,000 package which would include all my travel, super etc.”
He abruptly cut me off when his companion, Chevy, came to join us. He said that he “did not want to talk in front of her.”
He avoided any further conversation about the issue of salary while we were away on the business trip.
Ms McHenry returns to the matter at paragraphs 29
-31 of the affidavit when she deposes that on or around 20 December 2019:When I raised the promise of my wages Geoffrey got angry, raised his voice, and leaned towards me in an aggressive manner. The waiter came over and asked if I was OK.
Geoffrey continued angrily in his raised voice and said, inter alia, “when the debtors are collected and there is money then you can have money”.
I reminded him that as per the spreadsheet, and what I had explained many times before, I had inherited approximately $280K of debtors. A significant level of debtors had been collected, with a now quantified amount being in progress with the NDIS, and a significant balance was uncollectable as it had been invoiced inappropriately, incorrectly, with significant errors.
Paragraph 38, Ms McHenry deposed:
Geoffrey told me to put my request in writing detailing everything to himself, Dato and the shareholders, Lachie and Mary.
On 23 December 2019, Ms McHenry did put her claim in writing by email, inter alia, to Mr Harrison and his fellow director Dato. This email is annexure 5 to the applicant's affidavit. In it she says relevantly:
In our initial discussions you offered that I would receive a significant increase in salary in 3 months if I accepted the salary offered from 5th August 2019. On that basis, I agreed to accept the reduction from what I had asked for.
She relevantly continued:
Having met what was requested of me to the best of my ability given the business and the complexity of its issues, and as you all agreed time and again, have delivered far beyond your expectations, I request an increase to $250,000 which would be made up of car, travel allowance and additional contributions to superannuation.
The letter concluded:
I would appreciate a response within 7 days to allow me to plan ahead and make any decisions needed.
The applicant has deposed that she continued to work over the Christmas period up to 5 January 2020 and then went on leave, having notified her second in command, Jen Thornell, that she would do so. On 6 January 2020, Ms McHenry emailed Ms Thornell in the following terms:
Further to previous correspondence you have a legal obligation to ensure my pay is available in my account on the day pay is due.
I am aware of previous incidents where either sufficient funds have not been available or there has been an deliberate decision made not to pay people.
I can only assume in my case there has been an administrative error.
I will provide you with 24 hours to send me my payslip to this email address (given that I am on leave) and deposit funds into my account.
On 8 January 2020, Mr Harrison sent a text message it would appear to Ms McHenry which said:
Dear Nicole
Further to your request for an increased pay wage package and subsequent rejection, we accept that you are not longer employed by us.
Please return any and all company property by close of business tomorrow and you will be paid in accordance with your contract.
Thank you for your assistance since August 2019 and i wish you every success in your future.
The respondent's position is set out at paragraph 22 of Mr Harrison's affidavit dated 17 March 2022 as:
No application for leave had been received from McHenry and it was assumed that she had abandoned her position in the company from 30 December 2019.
He had also deposed at paragraph 18:
I had no response from McHenry after the 30th December 2019, including phone calls, WhatsApp calls (as confirmed in her annexure 2) or emails.
It should be noted that although the email of 8 January 2020 referred to a rejection of the pay claim, nothing in Mr Harrison's affidavits asserts when and where any such rejection took place. Nor has there been any documentation filed consistent with a formal rejection of the application for a pay increase. Mr Harrison's first affidavit filed 23 June 2020 does say at paragraph 8:
The board rejected the Applicant's request for increase in her remuneration package and notified the Applicant of their decision in person on or about 28 December 2019.
No greater elaboration of the matter has been forthcoming.
THE APPLICANT'S CLAIMS FOR PAY, ANNUAL LEAVE AND SUPERANNUATION
It should be noted that the gross pay offered to Ms McHenry was $156,624 per annum (see annexure 9 to the applicant's second affidavit).
The claims for annual leave are plainly claims arising under the Fair Work Act 2009 (Cth) and can be pursued in this Court. The claims for unpaid wages, unpaid annual leave and payment in lieu of notice are all “entitlements under contracts” pursuant to section 442 of the Act and pursuable as such in the Court. Additionally, the claims for unpaid wages and unpaid annual leave are well within the small claims jurisdiction of the Court, (albeit that the applicant has not elected to pursue the small claims procedure – see section 548 of the Act).
Insofar as the applicant seeks in effect payment in lieu of notice consistently with her contract (which provided for one month's pay by way of notice) and for superannuation are claims which I would regard as being part of the single federal controversy arising from the applicant's termination of employment and would be properly pursuable within the Court's accrued jurisdiction in any event.
The claim for compensation for breach of the general protection provisions is plainly brought pursuant to the Fair Work Act. I will take each of these claims in turn.
THE CLAIM FOR UNPAID WAGES
The applicant has deposed that she was not paid after 13 December 2019. In paragraph 16 of her affidavit dated 1 December 2021, she refers to not being paid after the pay run up to 13 December 2019 and she appends a payslip covering that period, (second Annexure DE-1).
At paragraph 17 she deposes to have accrued 33.9 hours of annual leave and asserts:
Annexed hereto and marked with the letters “DE-19” are payslip records.
There is no document annexure DE19 on the Court's copy of the affidavit. What is annexed is Annexure DE-1 showing a pay period from 27 December 2019 to 9 January 2020 with payment on 10 January 2020 showing pay up till that time, payment to superannuation (Cbus) and a zero balance of annual leave, (albeit that it is asserted that 33.9 hours of annual leave was paid out).
Mr Harrison’s second affidavit appends asserted payment records for superannuation accruals and he puts in issue the non-payment of wages.
No questions were put to the applicant by Mr Harrison that traversed or put in issue her assertions that she had not been paid. Likewise, no questions were put in cross-examination of Mr Harrison to suggest that Ms McHenry had not been paid and that the pay records did not reflect the true situation.
Given this forensic difficulty, the Court is immediately confronted by a very serious conundrum. There are two equally outlandish positions posited. On the applicant's case, she has been provided with a payslip and other records which are simply untruthful in the sense that the payments recorded as having been made simply have not been made. On the other hand, if one were to accept the respondents’ position, the applicant is outrageously seeking to be paid sums which indeed she has already actually been paid. Clearly both of these are outlandish constructs.
In the end, and despite the fact that no questions were put, it is appropriate that I should record that I found Ms McHenry to be a good witness who, despite a tendency to veer off on tangents, was clearly telling the truth. I did not find Mr Harrison to be persuasive. He is certainly articulate and self-possessed, but in the end I have heard the applicant's evidence and I believe it. The pay records do not reflect the reality. The applicant has not been paid the pay she should have been paid for the time she worked, not her annual leave and for superannuation.
No party has put before the Court the relevant tax records to show exactly how much the applicant was paid during her period of employment.
Trying to work out the exact amounts the applicant is to be paid is again made more difficult by the fact that the contract was expressed in net terms and no standard hours were expressed. Doing the best I can, I note that the annual payment of $156,624 would equate to a weekly wage of $3012. The period from 13 December 2019 until 4 January 2020, which was the last day the applicant worked before going on leave, is exactly three weeks and accordingly the applicant is entitled to be paid $9036 for this period.
The applicant then went on annual leave for three days before her employment was terminated and is entitled to be paid $602 for each day, being a total of $1806.
THE CLAIM FOR UNPAID ACCRUED ANNUAL LEAVE
The applicant commenced employment on 5 August 2019 and was employed until 8 January 2020. Her contract entitled her to leave as set out in schedule A and in accordance with current workplace legislation. The contract was silent as to the terms of annual leave, and accordingly I will apply the provisions of the Act. Accordingly, annual leave would accrue at the rate of 1.66 days per month. Her employment would have therefore accrued just over five months worth of service or 8.4 days of annual leave rounded off. She had taken three days of that leave, being the Monday, Tuesday, Wednesday, 6 to 8 January 2020, as leave, and would therefore, in my view, be entitled to 5.4 days of further leave already accrued at the time of her termination. The 5.4 days she was not paid amount to $3250.
THE CLAIM FOR NON-PAYMENT OF NOTICE
As already indicated, the contract gave the employer an entitlement to dismiss the applicant at any time on one month's notice. The position adopted by the respondents is that the applicant abandoned her employment. If she did not abandon her employment, the question that still arises on the respondent's case (albeit not clearly articulated) was that her employment was summarily terminated for cause. In the event that she were to be successful, the one month's pay would be worth $13,052.
I will return to this when I deal with the adverse action claims.
THE SUPERANNUATION PAYMENTS CLAIM
Annexure GD4 to Mr Harrison's second affidavit suggests that the sum that should have been paid to superannuation was $5627.90. I have not been provided with the appropriate tax records to show what the total paid to Ms McHenry was, and it is shrouded in mystery because the contract was expressed in net terms in any event. I will take Mr Harrison's figures as an admission against interest and order that that sum be paid into a compliant superannuation fund nominated by Ms McHenry. The process of reasoning that gives rise to this is that already described in respect of the wages claim above.
THE CAR ALLOWANCE ISSUE
The car was supposed to be provided to a value of $20,000 and fully maintained. In evidence Mr Harrison sought to suggest that a car had indeed been made available, but I found Ms McHenry's evidence about this entirely persuasive. She is to be paid an additional sum of five-twelfths of $20,000 rounded off, being the period of her employment during which no car allowance was paid to her, i.e. $8333.
THE ADVERSE ACTION CLAIM
Ms McHenry's claim is in truth a simple one. She says she raised the question of a pay increase and was sacked as a result. The respondent says that she was not dismissed at all but rather abandoned her employment. Section 340 of the Fair Work Act provides:
(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.
Pursuant to section 341, the meaning of a workplace right, it is relevantly provided at:
(1) A person has a workplace right if the person:
(c) is able to make a complaint or inquiry:
(ii)if the person is an employee - in relation to his or her employment.
Pursuant to section 342, an employer takes adverse action against an employee if the employer:
(a) dismisses the employee; or
(b) injures the employee in his or her employment; or
(c) alters the position of the employee to the employee's prejudice.
Pursuant to section 361, relevantly, (1) If:
(a)in an application in relation to a contravention of this Part, it is alleged that the 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 that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
Mr McHenry's evidence about this matter is relatively clear. At paragraph 13 of her first affidavit she said:
By email dated 8 January 2020, my employment was unexpectedly terminated because I asked about my requested pay increase to $250,000 gross per annum.
There is of course no doubt that Ms McHenry sent a message on 23 December 2019 in which she did indeed ask for a pay increase of that order. In doing so, she plainly exercised a workplace right.
Mr Harrison's first affidavit deposes at paragraph 6 to alleged underperformance by Ms McHenry. He also deposed at paragraphs 7-10:
Around the time that the review of the Applicant's remuneration package was due in November 2019 the Applicant had a number of conversations with me and other board members seeking an almost doubling of her salary to $250,000 per annum plus superannuation and the $20,000 vehicle allowance. I refer to paragraphs 13 and 14 of the Applicant's Complaint and say that the Applicant's current performance was discussed with her in these conversations and it was explained to her that subject to an improvement in her performance the possibility of an increase in salary or other benefits could become available in the future however she continued to seek the increase at that time. On this basis I asked the Applicant to submit a written request outlining what changes she was seeking for determination by the board which she did on 23 December 2019.
The board rejected the Applicant's request for increase in her remuneration package and notified the Applicant of their decision in person on or about 28 December 2019.
On that same day and following the rejection of her request the Applicant withdrew her services from the from the First Respondent and did not return to her position after that date.
A number of attempts were made by myself and members of the Board to contact the Applicant after she left the facility on 28 December 2019 including by telephone, WhatsApp and via email until 8 January 2020 at which time I finally accepted the Applicant's withdrawal of services as her resignation via email.
It should be noted that Ms McHenry's second affidavit appends very substantial tranches of WhatsApp communications between her and Mr Harrison. It should be further noted that these exchanges of information continued until at least 30 December 2019. So the assertion that the respondent makes that it was of the view that the applicant had ceased all work by 28 December is plainly not correct.
I note that at paragraph 40 of her second affidavit Ms McHenry has deposed that she did not receive a response to her email dated 23 December 2019. She has also deposed that she continued to work through till 4 January and took annual leave on 5 January.
Mr Harrison's second affidavit deposes at paragraphs 18-22:
I had no response from McHenry after the 30th December 2019, including phone calls, WhatsApp calls (as confirmed her annexure 2) or emails.
Neither the First nor Second respondents (nor any of its representatives as emailed in MCHs Annexure 5) had agreed to MCH’s requested Salary increase and it was assumed that she had stopped working for the First Respondent.
MCH’s requested increase in wages to $250,000 was ridiculously outrageous, being an almost doubling of her wages at a time when the First Respondent had experienced a continual decrease of revenue under MCH’s management.
McHenry stated that she was on leave at the 6th January 2020 (see her Annexure 6) in her email to others.
No application for Leave had been received from McHenry and it was assumed she had abandoned her position in the company from 30 December 2019.
When the matter was in Court, Mr Harrison put it to Ms McHenry that revenue had halved during the period of her employment. Ms McHenry pointed out that there was a manager and substantial number of staff setting up in direct competition. She gave answers about debtors and aged receivables, which to my way of thinking were reasonable and believable. The decrease in revenue arising from the departure of other staff makes eminent sense. Her evidence was also that the first respondent's margins were simply not big enough with what was left to cover the ongoing costs, and once again I accept that evidence as well. It was put to Ms McHenry repeatedly that she had failed to communicate and/or respond to the respondents after 30 December. Her answer was that she did. At P22 she said:
Unfortunately, all my email accesses were locked off on the day that I received the termination letter so I have no evidence to provide that I was still working or communicating at all.
When Mr Harrison was called, he asserted under cross-examination that his WhatsApp record could show he sent her messages after 30 December with no response and that he could produce them. As it happened, a WhatsApp communication on the 30th was, as I understand it, produced and Ms McHenry explained it. Despite his assertions, however, Mr Harrison was not able to produce any mobile phone records or emails or WhatsApp communications of the sort he had described. He said at P28 in response to a query as to whether there were any emails:
I believe there were but I can't access them just now.
It is plain that Ms McHenry was, as she asserts, in direct contact with Jennifer Thornell and told her that she was going on leave. It does not appear to have occurred to Ms McHenry that she should have sought approval of her leave from Mr Harrison, which is perhaps slightly surprising. Nonetheless, her contract of employment did not set out any particular protocols for the taking of leave, and I would infer that Ms McHenry felt that as the person in charge she was entitled to authorise herself to go on leave.
Contrary to the position adopted by Mr Harrison, I accept Ms McHenry's evidence that she allowed other staff to take leave and worked herself through till 5 January and I have no doubt that she went on leave as she said.
The case took on something of an appearance of an unfair dismissal case at times. This was so despite my pointing out that this is not an unfair dismissal case but an adverse action matter which is different. The reason it attracted these qualities, however, was the fact that the respondent's case as it emerged appeared to be that if there was a termination of employment, despite their denials, it was justified. Although not articulated in these terms, the position, properly construed, of the respondents was that if there was a termination of employment, it was not because of the claim for an increase in wages but because of underperformance by Ms McHenry.
In the light of the High Court's decision in Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; [2012] 248 CLR 500, it is not necessary for the Court to determine whether or not the complaints of poor performance were made out, but rather whether or not the respondent genuinely believed them and acted upon them.
As earlier indicated, I found Ms McHenry's answers to the questions about the performance of her duties to be persuasive and compelling. Any suggestion that the summary termination of Ms McHenry’s employment was justified by underperformance of her duties is simply not made out. But that is not the end of the matter.
It is important to remember that the applicant, given section 361, only has to prove that the action taken against her was wholly or substantially because of the exercise of the right.
Having seen and heard the parties and considered all the materials, I have no doubt that the raising of the pay complaint was the reason for the termination of employment. I do not accept that the applicant was told that her pay claim had been denied. It is said to have been done orally "in person" on or about 28 December, but there are no details of this conversation, such as it is said to have been, and there are certainly no materials before the Court to suggest that it was communicated in any written form.
Furthermore, contrary to the respondents’ position, the contemporaneous documentation shows that the applicant was still working and indeed taking annual leave. One thing that is strikingly absent from the respondents’ materials is any inquiry to Ms Thornell as to the applicant's circumstances, if such were giving rise to concern. Given that Ms Thornell was in contact with Mr Harrison and indeed was the person who repossessed her telephone, I would have expected to see some inquiry addressed to Ms Thornell as to why there had been no responses from the applicant. The respondents have not produced any materials to support the assertion that there were any such inquiries not responded to by the applicant, and she has, in my view, convincingly denied it.
What happened was that the respondent decided to terminate the applicant's employment and sent the disingenuous message to her on 8 January 2022. She had not abandoned her employment and had gone on annual leave. This is not a small matter, of course, and involves a serious finding. I have proper regard to the terms of section 140 of the Evidence Act2008 (Vic), but I am quite satisfied that the respondent decided to terminate the applicant's employment both because of the applicant's "outrageous" demand. There is no persuasive evidence before the Court that the operation of the business under Ms McHenry had produced an unjustified decrease in turnover or dissatisfaction with debtors/accounts receivable.
To conclude, therefore I find that,
(a)Ms McHenry had a workplace right inasmuch as she was entitled to make a complaint or inquiry about her employment;
(b)she exercised that right by oral application confirmed in writing on 23 December 2019;
(c)action was taken against her that involved the termination of her employment;
(d)this action was taken because of the exercise of the workplace right.
The Involvement of the Second Respondent
Neither the original application nor the form 2 claim filed by the applicant have pleaded in terms that the second respondent was involved in the first respondent’s contraventions of the Act within the meaning of section 550 of the Act. Nonetheless, Mr Harrison is named on both documents as the second respondent and I infer that it is put that he is said to be involved within the meaning of section 550.
In circumstances where Mr Harrison is one of the two shareholders and directors of the respondent as he informed me in court, and where on the materials as a whole he was clearly a guiding mind and force so to speak of the first respondent, it is immediately apparent that he was involved within the meaning of section 550. I note that in his affidavit material Mr Harrison deposed (see first affidavit paragraph 8) “I finally accepted the applicant’s withdrawal of services as her resignation via email”
In face of that admission, Mr Harrison’s involvement in the conduct assert against the first respondent is plainly made out.
WHAT SHOULD THE COMPENSATION FOR THE ADVERSE ACTION BE
The Court has broad powers pursuant to section 545 of the Act and "may make any order the Court considers appropriate if the Court is satisfied that a person has contravened a civil remedy provision", including, pursuant to subsection (2)(b), "an order awarding compensation for loss that a person has suffered because of the contravention".
Here the applicant seeks six months’ pay. Given that I am of the firm view that the applicant is entitled to one month's notice pursuant to her contract because the dismissal was not justified, to make an order for a further six months’ pay would be double-dipping.
It will be noted that this short paragraph above deals briefly with any claim for damages for wrongful termination of employment. As I indicated during the trial, a generalised common law claim for wrongful dismissal at large cannot stand in the face of the express term in the contract. Accordingly, Ms McHenry should not have been terminated from employment and should have been paid the one months’ notice to which she was entitled.
One area in which I found Ms McHenry's evidence to be extremely unpersuasive was her indication that she was unable to obtain any work until August 2020 as a result of the termination of her employment. She appeared to suggest that because she was closely enmeshed with a number of the people whom she had persuaded to come and work for the first respondent, and that a poor reputational outcome meant that it was difficult for her to get work in her chosen field. She herself, however, said that her qualifications as an accountant permit her to work across a number of fields. She was unable to give evidence of even a single job application she had made in the intervening period. It is for her to make good her claim in this regard, even accepting that the Court may take a robust approach to compensation for adverse action. In my view, the total dearth of convincing evidence of her endeavours to mitigate persuade me that an appropriate outcome is that the one month's pay in lieu of notice should be the sum that the Court awards her for damages by way of contravention.
CONCLUSION
The Court will hear from the parties as to any matters, including pecuniary penalties, that arise from this judgment.
I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Burchardt. Associate:
Dated: 6 April 2022
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