McJannet v Special Broadcasting Services Corporation T/As SBS Corporation
[2016] FCCA 2937
•12 December 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MCJANNET v SPECIAL BROADCASTING SERVICES CORPORATION T/AS SBS CORPORATION | [2016] FCCA 2937 |
| Catchwords: INDUSTRIAL LAW – Adverse action – where employee resigns – where Court prefers evidence of the Respondent’s employees – application dismissed. |
| Legislation: Fair Work Act 2009, ss.44, 50, 88, 99, 119, 122, 340, 342, 343, 345. |
| Cases cited: ACTEW v Pangallo [2002] FCAFC 325 Commonwealth Bank of Australia v FSU (2002) 125 FCR 9 Commonwealth Bank of Australia v Finance Sector Union of Australia (2007) 157 FCR 329 UGL Rail Services Pty Limited v Janik [2014] NSWCA 436 Unsworth v Tristar Steering and Suspension Australia Ltd (2008) 175 IR 320 |
| Applicant: | JAN MCJANNET |
| Respondent: | SPECIAL BROADCASTING SERVICES CORPORATION T/AS SBS CORPORATION |
| File Number: | SYG 1852 of 2015 |
| Judgment of: | Judge Altobelli |
| Hearing date: | 19 and 20 July 2016 |
| Date of Last Submission: | 20 July 2016 |
| Delivered at: | Wollongong |
| Delivered on: | 12 December 2016 |
REPRESENTATION
| The Applicant appeared in person. |
| Counsel for the Respondent: | Mr Darrams |
| Solicitors for the Respondent: | Norton Rose Fulbright |
ORDERS
The Application filed 3 July 2015 is dismissed.
Leave be granted to the parties to relist the matter on 7 days’ notice for directions as to any application for costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1852 of 2015
| JAN MCJANNET |
Applicant
And
| SPECIAL BROADCASTING SERVICES TRADING AS SBS CORPORATION |
Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant in this case was employed by the Respondent as Presentation Coordinator Supervisor, a Band 5 ongoing position. She had been employed with the Respondent since 1982, was promoted to the position in 2002, and resigned on 14 March 2016.
By way of Application filed on 3 July 2015 (the Application), the Applicant alleges that the Respondent (SBS) contravened ss.44, 50, 340, 343, and 345 of the Fair Work Act 2009 (FW Act) and clauses 7, 37 and 41 and Part 8 of the SBS Enterprise Agreement 2011 (the SBS Agreement). The Applicant also asserts that SBS breached an alleged implied term of the Applicant's employment contract.
At all relevant times and until the Applicant resigned from her employment on 14 March 2016 the:
a)Applicant was employed on a full-time and ongoing basis by SBS in the position of Presentation Coordination Supervisor (the Position) within the SBS Technology and Distribution Division (T&D Division); and
b)The SBS Agreement applied to the Applicant's employment with SBS.
It is undisputed that on or around 28 November 2014, SBS entered in a contractual agreement with Deluxe Australia Ply Limited (Deluxe) under which SBS outsourced parts of its playout operations to Deluxe (the Outsourcing) under a transfer of business process. As a consequence of the Outsourcing, a number of employees of the T&D Division (excluding the Applicant and some others) (called the “In Scope” Employees) were offered and accepted employment with Deluxe.
In the period February 2013 - November 2014 leading up to the Outsourcing SBS and Deluxe engaged in consultation with employees of the T&D Division, including the Applicant and the Community and Public Sector Union (CPSU)(of which the Applicant was a member), about the potential transfer of their employment to Deluxe as a result of the Outsourcing.
From 1 May 2014 to 28 November 2014, during the consultation process, the Applicant and other employees raised concerns and asked questions about the potential impact of any transfer of their employment from SBS to Deluxe. This included the potential impact of any such transfer on the employees' superannuation entitlements, including those employees who were members of the Commonwealth Superannuation Scheme (CSS), a defined benefit superannuation scheme. The Applicant was such a member.
As part of the preparation for the proposed Outsourcing, SBS commissioned the preparation of actuarial material to determine what superannuation contributions would be required to ensure terms no less favourable for the potentially impacted employees of the T&D Division, including the Applicant (the Actuarial Reports).
A decision was made by SBS to retain the employment of the Applicant and a number of other SBS employees (two of whom, in addition to the Applicant, were members of the CSS). It was proposed, and a direction given to that effect, that the Applicant undertake a secondment with Deluxe in order to perform the functions of the Position (the Secondment).
As events transpired, the Applicant did not take up the Secondment, took a period of leave and then resigned from her employment with SBS on 14 March 2016. Notwithstanding that the Applicant resigned, SBS later wrote to the Applicant and invited her to reconsider her resignation in light of a number of matters that had become apparent during the period that she was away from work. The Applicant declined the invitation and her employment ceased.
The Competing Contentions
The competing contentions between the parties establish the issues for the Court to decide. Of particular assistance to the Court was the Points of Claim filed on behalf of the Applicant on 7 September 2015.
Claims that SBS engaged in adverse action in contravention of s.340 of the FW Act
The Applicant alleged that contraventions of s.340 of the FW Act occurred by reason of the following matters:
a)SBS' purported decision to refuse to provide the Applicant information about the effect of the Outsourcing on her employment (Points of Claim at [14] – [25]); and
b)SBS' decision to require the Applicant to undertake an indefinite secondment (or otherwise resign) and not pay her redundancy pay (Points of Claim at [35], [43]).
SBS denied that it contravened s.340 of the FW Act as alleged by the Applicant. In regards to the allegation in paragraph 11(a) above, SBS contended:
a)It provided the Applicant with all relevant information regarding the proposed Outsourcing as it related to the Applicant. However, once the final decision was made to proceed with the Outsourcing, the Applicant was not "In Scope". Consequently, the Applicant was not required or called upon to make a decision on whether to accept a transfer of employment to Deluxe. She therefore did not require the Actuarial Reports or other information in order to make that or any other decision.
b)Further and consequently, the Applicant was not and could not have been "injured" (cf Points of Claim at [23]) in her employment. The Applicant lost nothing because of the actions of SBS. She continued in employment with SBS.
c)Finally, and in any event, even if found to amount to an injury to the Applicant in her employment, the reasons for not providing the Applicant with the information were not prohibited, and did not include prohibited reasons (Leslie at [78], [79], [86]).
In regards to the allegation in paragraph 11(b) above, SBS contended that it was not immediately obvious from the Applicant's claim how it could be said that decisions of SBS amount to adverse action for the purposes of s.342 of the FW Act. That said, in order to make out this claim, the Applicant had to (as a minimum) establish that she was entitled to receive a redundancy payment.
Redundancy is dealt with in Part B of the SBS Agreement. SBS contended that on its proper construction, clause 31 of the SBS Agreement refers to an "employee redundancy'' situation as opposed to a "position redundancy" situation ( Commonwealth Bank of Australia v FSU (2002) 125 FCR 9 at [27]; UGL Rail Services Pty Limited v Janik [2014] NSWCA 436 at [134]). SBS' contention in the proceedings was that none of the circumstances in clause 31.1 of the SBS Agreement arose. Even if those circumstances did arise, it did not follow that the Applicant was redundant; the clause provides discretion to SBS; it was under no duty to dismiss the Applicant nor did clause 31 give rise to something akin to a conditional contractual benefit for the Applicant (Unsworth v Tristar Steering and Suspension Australia Ltd (2008) 175 IR 320 at [23]). An entitlement to payment pursuant to clause 34 only arises where SBS has made a decision to make an employee redundant.
SBS contended that there was no occasion for SBS to consider whether the Applicant was redundant. On the contrary, for the reasons set out above, SBS made a concerted effort to retain the Applicant (and it is contended that this was consistent with the purpose and principles of the SBS Agreement - see clause 2.2.4). SBS contended that the Applicant was therefore not entitled to receive a redundancy payment under clause 34 of the SBS Agreement. Thus, the fact that the Applicant was not entitled to receive a redundancy payment was sufficient reason to dispose of this and a number of the claims the Applicant made in the proceedings.
In any event, SBS argued:
a)The Applicant was not subjected to adverse action for the purposes of s.342 of the FW Act because it cannot be said that she suffered any "injury'' or prejudicial alteration to her position. A "before and after" test is usually applied to see whether either of these has occurred by reason of any act of the employer (Unsworth at [24] per Gyles J citing Evatt J in Blair v Australian Motor Industries Ltd (1982) 61 FLR 283 at 289 and Branson J in Commonwealth Bank of Australia v Finance Sector Union of Australia (2007) 157 FCR 329 at [127]). In this case, the Applicant's position remained the same. She remained an employee of SBS, on the same terms and conditions of employment. In those circumstances, SBS contended that the Applicant was also not entitled to receive a redundancy payment.
b)Further, none of the reasons why SBS decided to retain the Applicant's employment and second her to Deluxe were prohibited reasons.
Ancillary breach of contract and SBS Agreement claims arising from decision not to pay the Applicant a redundancy payment
The Applicant also alleged that SBS' decision to direct her to undertake the Secondment and not pay redundancy pay under the SBS Agreement breached the SBS Agreement and therefore s.50 of the FW Act (Points of Claim at [37]). SBS contended that for the reasons alluded to above, the Applicant was not entitled to receive a redundancy payment and therefore SBS has not breached the SBS Agreement.
The Applicant further alleged that the decision to direct her to undertake the Secondment and not pay her a redundancy payment constituted a breach of the alleged "Good Faith Term" of her employment contract (Points of Claim at [8],[38], [53(a)]). She alleged that the term was implied "at law".
SBS did not concede that such a term was implied in the Applicant's contract of employment.
SBS argued that it is not in any event necessary to imply such a term into the Applicant's contract of employment given the prescriptive nature of the clauses in the SBS Agreement; "necessity'' being the lynchpin in respect of terms implied "at law" (Commonwealth Bank of Australia v Barker [2014] HCA 32 at [29]).
Further, it has been said that the implied term of good faith (where it has been found) relates to the performance of a contract ( United Group Rail Services Ltd v Rail Corporation New South Wales [2009] NSWCA 177 at [61]; Bartlett v Australia & New Zealand Banking Group Ltd [2016] NSWCA 30 at [42]). That means that it impacts on how a party exercises (or can exercise) its other contractual rights (New South Wales v Shaw [2015] NSWCA 97at [136]).
SBS contended that in the circumstances of this case, even if such a clause was found to exist, it would not and could not have the result contended by the Applicant. This is because the Applicant did not have a contractual right to redundancy pay. Any right that the Applicant had to redundancy pay was provided for in the SBS Agreement. It is trite law that the terms of a workplace agreement do not form terms of the contract of employment unless it is the express intention of the parties that they be so incorporated (Byrne v Australian Airlines (1995) 185 CLR 410 at 420 - 421; ACTEW v Pangallo [2002] FCAFC 325). There is no evidence that it was the express intention of the parties that the SBS Agreement be incorporated into the Applicant's contract of employment.
Claims that SBS breached the SBS Agreement and the FW Act by failing to provide information to the Applicant
The Applicant also alleged that SBS contravened clauses 37 and 41 of the SBS Agreement regarding consultation and the provision of information and therefore contravened s.50 of the FW Act (Points of Claim at [14] – [22], [26], [39], [40]). Consideration of this claim requires an examination of the obligations under the SBS Agreement.
SBS submitted that clauses 37 and 41 are both contained in Part 9 of the SBS Agreement. Clause 37 expresses a commitment to consult, share information and discuss matters with employees. Clause 41 contains two salient obligations in the circumstances of this case:
a)an obligation to notify affected employees when a proposal has been developed to introduce major workplace change that is likely to have "significant effects" on employees (clause 41.1.1); and
b)an obligation to consult after a definite decision has been made to make the changes the subject of the notification made under clause 41.1.1 (clause 41.3.3).
SBS contended that, arguably, clauses 37 and 41 are directed to different things; clause 37 being directed to matters that would not fall within clause 41. In the circumstances of the Outsourcing, SBS says that the salient clause that applied is clause 41.
SBS submitted that consultation is not defined in the SBS Agreement. It is an inherently flexible term; but does not constitute a right of veto (CEPU v QR Limited [201OJ FCA 591 at [44] per Logan J). To the extent that the Court considers that both clauses 37 and 41 were engaged, what constitutes consultation should be given a consistent interpretation in those clauses. Further, it could not be said that SBS' obligations pursuant to clause 37 of the SBS Agreement are greater than those pursuant to clause 41.
SBS agreed that it has complied with its obligations under the SBS Agreement in terms of clauses 41 (and 37). In that regard, SBS said:
a)It is agreed between the parties that in April 2013 SBS informed its employees that a review was being undertaken into the T&D Division with a view to outsourcing its functions.' The evidence of Mr Leslie and Ms Muras amply demonstrates that SBS notified and shared information with the relevant employees regarding the Outsourcing.
b)Its obligation to consult with its employees pursuant to clause 41.3 of the SBS Agreement arose from 28 November 2014 when it executed its managed services agreement and employee transfer agreement with Deluxe. It was at that time that the "definite decision" to implement the proposal (previously notified pursuant to clause 41.1. 1) was made (Leslie at [13(e)], [17(b)], [92] - [95]). The Applicant was not an “In Scope” Employee and therefore the nature of the consultation with the Applicant was different to that that would have applied to “In Scope” Employees. The evidence demonstrates that at that point SBS was providing information to the Applicant about its decisions.
c)Notwithstanding subparagraph (b) SBS contended that the evidence clearly demonstrates that SBS was consulting with its employees, including the Applicant, well before the time at which clause 41.3.3 was triggered. It is apparent that the consultation with Ms McJannett resulted, in part, in SBS' decision that the Applicant (and others) would not be "In Scope" (Leslie at [90] - [91]). It would be apt to observe that the consultation with the Applicant (at least) had achieved one of its desired aims (i.e. taking on board the concerns and issues raised by the Applicant and factoring them into the decision making process).
d)In addition to it not being relevant to any "decision" that the Applicant had to make in the circumstances, the non-provision of the Actuarial Reports was also justified on the basis of clause 41.3.4 of the SBS Agreement.
SBS argued that a significant misunderstanding by the Applicant permeated her evidence and some of her claims (Points of Claim at [39]). That is that the Applicant was "In Scope" and would always be transferring to Deluxe. That was not the case. The Applicant was a Potentially Affected Employee whereas “In Scope” Employees were those selected to transfer to Deluxe, in the sense that they were offered and then accepted employment with it. That decision (ie who would be “In Scope”) was not finalised or made until the terms of the contractual agreements between SBS and Deluxe were finalised on around 28 November 2014. There was never any "change" in the Applicant's position from being "In Scope" to not being "In Scope". Ultimately, nothing of substance in the proceedings turns upon whether or not the Applicant believed - reasonably or otherwise - that she was going to be offered employment by Deluxe. When the definite decision to proceed with the Outsourcing was made the Applicant was not "In Scope". SBS provided (and attempted to continue to do so) the Applicant with information about what that meant for the Applicant in terms of the overall Outsourcing and her employment.
Claim that SBS engaged in conduct in contravention of s.345 of the FW Act
The Applicant claimed that SBS contravened s.345 of the FW Act by Ms Muras making false and/or misleading representations to her about her entitlement to redundancy pay under the FW Act and SBS Agreement (Points of Claim at [41]). It is not in dispute that SBS did tell the Applicant that she was not entitled to redundancy pay under the SBS Agreement (Points of Claim at 31(a)]. However, for the reasons set out in paragraph 14 and 15 above, that representation was correct. Further, to the extent that Ms Muras made any representations about the Applicant's entitlements to redundancy pay under the FW Act (Muras at [81]), those representations were also correct.
SBS was not terminating the Applicant's employment due to redundancy which is the basis upon which payment pursuant to s.119(1) of the FW Act arises and, if there was a "transfer of employment" for the purposes FW Act, s.122(2) of the FW Act would apply.
More fundamentally however, even if the representations made by Ms Muras were found not to be correct, it does not mean that s.345 of the FW Act was contravened. This is because a contravention of that section only arises if the representation is made knowingly or recklessly. For it to be made "knowingly'', the person who made the representation must know it was false when the person made it. For it to have been made "recklessly", the person either must have made the representation without believing it to be true or not caring whether it was true or false ( Director of the FWBI v Baulderstone Pty Ltd & ors [2014] FCCA 721 at [54] - [58]).
SBS contended that for the reasons given by Ms Muras (Muras at [92] and [125]) the Court would not, and cannot, be satisfied that Ms Muras made any representations knowingly or recklessly.
Claim that SBS engaged in conduct in contravention of s.343 of the FW Act
The Applicant claimed (Points of Claim at [42]) that SBS contravened s.343 of the FW Act by Ms Muras "directing" that the Applicant accept the Secondment or resign from her employment. SBS disputed that Ms Muras gave any such direction. It was further alleged that SBS' direction on 6 February 2015 that the Applicant commence the Secondment (when she returned from sick leave) contravened s.343 of the FW Act. SBS did not dispute that it gave a direction to the Applicant in its letter dated 6 February 2015 (Defence at [34]).
SBS did, however, dispute that its conduct in this regard contravened s.343 of the FW Act, for the following reasons:
a)Firstly, for coercion to be established under s.343 of the FW Act, there must be action aimed to negate choice or the application of pressure amounting to compulsion of the will of the person the subject of the coercion; and the action which is taken must be unlawful, illegitimate or unconscionable ( Qantas Airways Ltd v Australian Licensed Aircraft Engineers Association (2012) 202 FCR 244 at [58], [82]; Liquor Hospitality and Miscellaneous Union v Arnotts Biscuits Ltd (201O) 188 FCR 221; Essa Australia Ply Ltd v The Australian Workers' Union [2016] FCAFC 72 at [174] (per Buchanan J, Siopis J agreeing at [1])). In the circumstances of this case, none of SBS' conduct satisfies either condition. SBS was entitled, pursuant to clause 1.6.1 of the SBS Agreement, to direct the Applicant to carry out work in accordance with her skill competence and training, and the direction to undertake the Secondment was such a direction.
b)Secondly, and more critically, the conduct must be engaged in for the purposes of either subsections (a) or (b) of s.343 of the FW Act. The Applicant failed to identify or establish what workplace rights the purported conduct was directed to. In any event, it cannot be found on the evidence that SBS' conduct was directed at such matters (Muras at [123] - [124]).
Claim that SBS breached the SBS Agreement and the FW Act by requiring the Applicant to repay the overpayment
The Applicant claimed (at Point of Claim [47]) that SBS contravened s.340 of the FW Act by reason of the decision by SBS to require the Applicant to repay an amount of $1,725.66 (Overpayment) which had been paid to her on or around 18 December 2014.
SBS denied that it had contravened s.340 of the FW Act as alleged by the Applicant. In closing submissions, the Applicant withdrew this claim.
Claims that SBS breached the SBS Agreement and the FW Act by refusing the Applicant's annual leave request
The Applicant claimed (Points of Claim [49] and [51]) that SBS contravened ss.44, 88 and 340 of the FW Act by reason of the decision of SBS to refuse an annual leave request made by the Applicant to take annual leave for one month during the period 2 February 2015 to 2 March 2015.
SBS denied that its conduct in refusing the Applicant's annual leave request constituted a contravention of ss.44, 99 and 340 of the FW Act, and/or clause 7 of the SBS Agreement. In this regard SBS argued:
a)The decision by SBS to not approve the request for annual leave for one month, which would coincide with the period in which the Outsourcing was to be implemented (Coutts at [41]), was made because:
i)the Applicant had previous experience with similar transitions in circumstances where SBS had upgraded technology;
ii)of the potential negative impact the transition ("walk-in") would have on SBS' playout operations continuity and quality, which necessitated having as many relevant employees available to assist with the transition as possible;
iii)the Applicant's skills and experience in ensuring continuity and quality would have substantially assisted in the ongoing operational delivery of SBS' playout operations during the period in which the Outsourcing was to be implemented; and
iv)a decision had already been made to give priority to another employee in the T&D Division who was required to take annual leave over the same period as that requested by the Applicant, due to that employee's excessive annual leave balance (Coutts at [43]).
b)The evidence of Mr Coutts (Coutts at [44]) amply demonstrates that SBS' decision in no way took into account the complaints or inquiries raised by the Applicant regarding:
i)the potential impact a transfer might have on the Applicant's superannuation entitlements;
ii)that the Applicant raised a preference to take a redundancy; or
iii)that the Applicant considered she was entitled to a redundancy payment under the SBS Agreement.
The Applicant also claimed SBS had breached clause 7 of the SBS Agreement regarding annual leave and therefore contravened ss.88 and 44 of the FW Act. SBS contended that it complied with its obligations under clause 7 of the SBS Agreement and was not obliged to approve the Applicant's annual leave request under the terms of the SBS Agreement.
In respect of the Applicant's claim that SBS breached s.88 of the FW Act in purportedly unreasonably refusing her annual leave request. SBS denied that it breached s.88 of the FW Act and argued:
a)For the reasons stated above at 38(a) and 38(b), its decision to refuse to grant the Applicant's annual leave request was based on the operational requirements of SBS' business at the time (and with reference to the requirements of SBS' business for the duration requested period of annual leave) and therefore, cannot be said to have been unreasonable.
b)At the time SBS proposed alternatives which would have enabled the Applicant to take a shorter part of the period proposed in her annual leave request (2 February 2015 - 2 March 2015) or for the full month at a later point in time (Coutts at [46] and Muras at [146]).
Further, the evidence of Mr Coutts refuted the claim that SBS' decision to refuse the Applicant's annual leave request was in any way intended to be a 'punishment' imposed on the Applicant (Coutts at [44]).
The Evidence
The Applicant relied on the following material:
a)Application under the Fair Work Act filed 3 July 2015
b)Claim under the Fair Work Act alleging contravention of a general protection filed 3 July 2015
c)Points of Claim filed 7 September 2015
d)Affidavit of Applicant sworn 6 May 2016
e)Affidavit of Applicant sworn 30 June 2016
The Respondent relied on the following material:
a)Affidavit of Noel Edward Lesliefiled 7 June 2016.
b)Affidavit of Andrea Jane Muras filed 7 June 2016.
c)Affidavit of Jeremy Rodney Coutts filed 7 June 2016.
d)Affidavit of Sarah Patricia Dickinson filed 7 June 2016.
A number of documents were tendered during the hearing. Where relevant, these documents will be identified in these Reasons.
The Hearing
The Applicant represented herself at the hearing, though she had been previously represented by Laxon Lex Lawyers. That firm prepared, and caused to be filed, the Applicant’s Points of Claim document dated 7 September 2015.
The Applicant impressed the Court by her obvious intelligence. She was articulate as well as courteous. She suffered from a lack of objectivity about her claim, and at times slipped into emotion, but mostly demonstrated a professional approach to the conduct of the hearing.
Mr Darrams of Counsel appeared for SBS at the hearing.
The Applicable Law
An allegation of adverse action requires consideration of the "conduct" alleged to constitute the adverse action by the employer against the employee ( Klein v Metropolitan Fire and Emergency Services Board (2012) 208 FCR 178 at [104] per Gordon J). An employee also needs to prove the existence of the objective facts that are said to provide the basis of an employer's conduct; it is not enough for an employee to merely make assertions regarding the elements of their claim ( Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd (1999) 140 IR 131 at [161]-[162] per Branson J; Rojas v Esselte Australia (No. 2) (2008) 177 IR 306 at [49] per Moore J; CFMEU v BHP Coal [2010] FCA 590; Jones v Queensland Tertiary Admissions Centre (No. 2) (201O) 186 FCR 22 at [10]; United Firefighters Union of Australia v Easy [2013] FCA 763 at [41] per Ross J).
Why an employer took adverse action against an employee is a question of fact ( Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 290 ALR 647 at [41] per French CJ and Grennan J and at [101] per Gummow and Hayne JJ). Evidence from the decision-maker that explains why the adverse action was taken will be relevant to this question ( Barclay at [44]-[45] per French CJ and Grennan J and at [101] per Gummow and Hayne JJ). The focus of the inquiry is on the reasons of the decision maker at the time the adverse action was taken ( Barclay at [127] per Gummow and Hayne JJ). If the evidence of the decision maker is that they were not influenced by a proscribed reason and that evidence is accepted, it is capable of rebutting the presumption ( General Motors Holden Pty Limited v Bowling (1976) 12 ALR 605 at 612 per Gibbs J; Barclay at [56] per French CJ and Grennan J and at [8] per Gummow and Hayne JJ; Harrison v P and T Tube Mills Pty Ltd (2009) 188 IR 270 at [33]).
The task of a court in an adverse action proceeding is to determine three factual questions: (a) was an employee exercising a "workplace right"?; (b) did the employer take adverse action against and employee within the meaning of s.342 of the Act?; and (c) did the employer take the adverse action against the employee because of a proscribed reason or reasons which included that proscribed reason? (see United Firefighters at [44]).
An "injury" as used in s.342 of the FW Act extends to injury of any compensable kind, a legal injury, or an adverse effect on an existing legal right ( Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) (1998) 195 CLR 1 at [4]; Australian and International Pilots Association v Qantas Airways Ltd (2006) 160 IR 1 at [13]-[14] and Unsworth v Tristar Steering and Suspension Australia Ltd (2008) 175 IR 320 at [25]). It includes a reference to deprivation of one of the more immediate practical incidents of an employee's employment, such as loss of pay or reduction in rank ( CPSU v Telstra Corp Ltd (2000) 99 IR 238 per Finkelstein J at [20] citing Smithers J in Childs v Metropolitan Transport Trust (1981) IAS Current Review 946).
Whether a general "good faith" term is implied at law in employment contracts has not been resolved ( Commonwealth Bank of Australia v Barker [2014] HCA 32; Marmax Investments Pty Ltd v RPR Maintenance Ply Ltd [2015] FCAFC 127 at [121]). There is some doubt however, notwithstanding the High Court decision in Barker ( New South Wales v Shaw [2015] NSWCA 97 at [130]; but see the possibility of implication in Bartlett v Australia & New Zealand Banking Group Ltd [2016] NSWCA 30).
A consideration of the regulatory and statutory regime applying to employment is a consideration in determining necessity ( State of South Australia v McDonald [2009] SASC 219 at [269] - [272]).
Credit Issues
This is a case where it is necessary to make observations and findings on matters of credit.
The deponents of all affidavits read in the case were required for cross-examination, and were in fact cross-examined. The Applicant was, unsurprisingly, extensively cross-examined.
As a general finding, the Court prefers the evidence of the Respondent’s witnesses over the evidence of the Applicant. There are specific matters that will be discussed in the evidence below. All witnesses gave their evidence in good faith, and honestly in the sense of not intending to mislead. The Applicant’s evidence was clouded, however, by unresponsiveness at times in cross-examination, by poor memory, and by lack of confidence in her testimony. The Court formed the strong impression that the Respondent’s witnesses had no particular interest in the outcome of the litigation, and were thus quite objective and indeed matter-of-fact in their evidence. They had documentary records from which their memory was quite properly refreshed. The Applicant had a vested interest in the outcome of her claim. Of course all Applicants do. The Court often formed the impression that the Applicant’s perspective on events was shaped by her feelings rather than facts. Her recollection of events was skewed, but nevertheless genuinely held. The Court finds that where the Applicant’s evidence conflicts on a material point with the evidence of any of the Respondent’s witnesses, the latter’s evidence prevails.
The Evidence of Mr Leslie
The evidence about the outsourcing is primarily contained in the evidence of Noel Edward Leslie. Mr Leslie relied on his affidavit sworn 7 June 2016. Mr Leslie was extensively (and indeed, skilfully) cross-examined by the Applicant on the second day of the hearing. Mr Leslie holds the position of Chief Technology Officer for the respondent. He was primarily responsible for negotiating and implementing the outsourcing project. He provided extensive details pertaining to the outsourcing, which were not challenged in cross-examination. There are some important details that are relevant to the matters before the court. For example, he deposed that SBS had made a strategic decision to implement the outsourcing project by way of a walk-in/walk-out model. Thus, on commencement of the arrangement, certain SBS employees would transfer to the preferred vendor (as it turned out, Deluxe). The preferred vendor would walk in and commence operating the SBS playout operations at SBS premises, while the preferred vendor designed, built and eventually transitioned playout operations to its own service in a different location (the walk-out). The walk-in period was expected to take about two years. The Court notes that this meant, in effect, there would be few physical changes in the Applicant’s employment for 2 years.
Mr Leslie deposed that SBS wanted to ensure that its employees transferred to the preferred vendor on terms no less favourable than their current terms and conditions of employment, such that there would be no redundancies triggered under the SBS Enterprise Agreement. As the Court accepts this evidence, it is highly unlikely, therefore, that any one on behalf of the Respondent would have indicated to the Applicant that she would receive a redundancy payment.
In his affidavit, Mr Leslie deposed to the extensive efforts undertaken to communicate with SBS employees regarding the outsourcing project. There is no dispute from the evidence that the Applicant participated in many of these meetings.
It is clear from his evidence that the Applicant was considered by SBS to be within a group of Potentially Affected Employees. SBS was concerned that, in its negotiations with any preferred vendor, none of its Potentially Affected Employees’ superannuation entitlements would result in those employees being worse off. It thus became necessary for SBS to engage external consultants, Towers Watson, to provide advice in this regard. Another firm, Mercer, was subsequently involved.
Mr Leslie deposed to a meeting held on 8 October 2014 which involved the Applicant, and which was also attended by Ms Muras. The evidence of Ms Muras largely corroborates Mr Leslie’s version of this meeting. He sets out what was said at the meeting at paragraph 67 of his affidavit. At that meeting the Applicant raised, albeit on a hypothetical basis, that she might not want to transfer, and whether redundancies would be offered for employees who did not want to transfer. Mr Leslie explained that the position of SBS was consistently that there would be no redundancies arising out of the outsourcing. The Applicant asked: “If I decide not to transfer, my only choice is to resign?”. Ms Muras explained: “No, Jan. When the outsourcing agreement is signed, we will know who is “In Scope” to be transferred to Deluxe. “In-scope” employees who do not wish to accept an offer an employment from Deluxe will be taken to resign from SBS. No one will be made redundant.” The Court notes that, as it turns out, the Applicant was not an “In Scope” employee. There was further discussion about superannuation entitlements on transfer to Deluxe, and an assurance that employees would not be worse off.
It is clear from Mr Leslie’s affidavit that the issue of ensuring that SBS employees were no worse off, particularly in terms of their superannuation entitlements, if they were “In Scope”, was an important issue. It became increasingly apparent that for those SBS employees who had CSS entitlements, it would be very difficult indeed for Deluxe to ensure that they were no worse off.
In October 2014, there was a series of email exchanges involving the Applicant, Mr Leslie, and Ms Muras. One of the issues raised was in relation to providing to the Applicant the Towers Watson report about superannuation entitlements. The common view of Mr Leslie and Ms Muras was that that information would be shared with “In Scope” staff who, inferentially, would need the report to satisfy themselves that they were no worse off as a result of the transfer of their employment.
In any event, Mr Leslie’s evidence is that once the negotiations with Deluxe were finalised on about 28 November 2014, “SBS and Deluxe had agreed not to place Ms McJannett (or any other CSS employee) “In Scope”, such that, I did not see any value in providing her with the Towers Watson report. Her employment was remaining with SBS and she did not require calculations as to the percentage of income that Deluxe would have been required to contribute to her superannuation fund had she transferred.”
It is important to note, the court observes, that the decision not to place the Applicant “In Scope” was a decision made by SBS and Deluxe. That is hardly surprising. A reasonable inference to be drawn from all the evidence is that Deluxe would have had to pay a substantial premium having regard to the Applicant’s CSS superannuation entitlements, in order for her to be no worse off.
At paragraphs 90 and 91 of Mr Leslie’s affidavit he deposed:-
90. Again, on 8 December 2014 at 12:31pm, Ms McJannett acknowledged receipt of my response but stated:
“…I do not agree with your account of what occurred at the meeting on the 28th November. Please allow me some time to consider your response before you take any further action on my behalf.”
Annexed to this affidavit and marked “Annexure AJM-31” is a true copy of the email chain between myself and Ms McJannet copying in Mr Coutts and Mr Anderson) dated 8 December 2014 referred to in paragraphs 87 to 90.
91. I immediately responded on 12:39 pm, stating:
“I’m happy to talk through any concerns you may have regarding your ongoing employment with SBS. As mentioned in my email below, I will provide you with a letter shortly confirming the arrangements for your ongoing role with SBS as a result of the managed services arrangement. Can I ask you to respond to my request for feedback from you on the reporting structure, so that I can address this as a part of the documentation process.”
Annexed to this affidavit and marked “Annexure AJM-32” is a true copy of the email chain between myself and Ms McJannet (copying in Mr Coutts) dated 8 December 2014 referred to in paragraphs 90 and 91.
Mr Leslie deposed that it wasn’t until his meeting with Deluxe on 27 November 2014 that his preliminary list of the positions of those Potentially Affected Employees who would be “In Scope” was agreed upon. This included his decision not to place “In Scope” the Applicant’s position.
He deposed that it wasn’t until early November 2014 that he started considering the viability of retaining the employment of a number of employees, including the Applicant, and instead seconding them to Deluxe. He considered secondment attractive to SBS because it appeared to resolve the concerns of the Applicant regarding her superannuation entitlements.
What is unclear from the evidence contained in Mr Leslie’s affidavit is the precise chronology of his belief, ie, whether the secondment proposal arose before, after, or at the same time as the decision referred to at paragraph 90 of his affidavit that the Applicant’s position would be able to be carried out whilst employed by SBS, and not outsourced. Nothing ultimately turns on this.
In any event it is clear that by 28 November 2014 a meeting occurred involving the Applicant, Ms Muras, and Mr Coutts at which the Applicant was told that the outsourcing negotiations had finalised and the decision had been made by SBS to retain the Applicant as an employee, but to second her to Deluxe.
Mr Leslie deposed that on 17 December 2014, he signed what he described as the secondment letter confirming to the Applicant that she would remain an SBS employee, and accordingly her superannuation entitlements would be unaffected by the outsourcing, that her secondment to Deluxe was anticipated on 27 January 2015, and that her day-to-day reporting responsibility would be both to a manager at Deluxe, in addition to Mr Coutts. The letter also informed the Applicant that all other terms and conditions of her employment would remain the same.
Mr Leslie insists that at all relevant times, all the decisions that he made in relation to the Applicant were solely motivated by the matters to which he deposed at paragraph 90, and also paragraph 99:-
99. On or around 18 December 2014, I hand-delivered a letter dated 17 December 2014 from SBS and signed by Mr Leslie to Ms McJannett. The purpose of this letter was to:
a. acknowledge the concerns regarding the impact which a transfer of employment may have on McJannett’s membership of CSS;
b. set out SBS’s decision to continue her employment with SBS, which would enable her to maintain her CSS membership, and instead second her to Deluxe, commencing 27 January 2015;
c. confirm that she would report to the Service Delivery Manager, or other designated position, on a day to day basis but also report to Mr Coutts who would continue to manage her employment with SBS and her ongoing performance;
d. confirm that all other conditions of her employment with SBS remain unchanged; and
e. inform her that from 26 January 2017, Deluxe would relocate to their facility in Lane Cove and she would be required to relocate, but would still remain employed by SBS.
Annexed to this affidavit and marked “Annexure AJM-37” is a true copy of the secondment letter issued to Ms McJannett dated 17 December 2014.
He emphasised the desire of SBS to address the Applicant’s concerns about her superannuation entitlements.
As foreshadowed earlier in these reasons, the Applicant conducted a thorough, and indeed skilful, cross-examination of Mr Leslie. Indeed, she spent far more time cross-examining Mr Leslie, than either Messrs Dickson, Coutts or Muras, no doubt recognising the importance in the context of her application, of Mr Leslie’s evidence.
Interestingly, the net effect of the Applicant’s cross-examination of Mr Leslie ultimately demonstrated to the court the Applicant’s quite fundamental misunderstanding in relation to the outsourcing, and how it affected her. For example, it was not, never was, and indeed never could be the Applicant’s sole decision about transferring her employment to Deluxe. She could not possibly make this decision independent of SBS, or Deluxe. Thus, all that she could be entitled to was consultation. Once the decision was made that she remain with SBS, again, her right was to be consulted about the secondment to Deluxe. To the extent that the Applicant considered herself to be “In scope” that was based on a clear misunderstanding on her part. It was not for her to decide, independently of SBS and Deluxe. To the extent, therefore, that the Applicant’s case relied upon a change of position affecting her (ie, from being “In Scope”, to not being “In Scope”) that is a fundamental misapprehension of what took place.
If what the Applicant meant to convey was that she was under the impression that her area of operation was likely to be “In Scope”, even Mr Leslie acknowledged in cross-examination that the Applicant’s area was identified as a number of potentially affected areas. However, as Mr Leslie emphasised in cross-examination, the relevant issue was whether certain people were “In Scope”, and not areas of operation, and the fundamental fact is that the Applicant was not considered to be “In Scope”. Mr Leslie agreed that all of the Applicant’s team was determined to be “In Scope” and transferred to Deluxe, and only the Applicant and one other were not transferred, and that was to address their concerns about their CSS defined benefit superannuation entitlements. The court is satisfied that if the Applicant formed the impression that she was going to be transferred to Deluxe, it was not on the basis of anything that the respondent, or its employees, represented to her, directly or indirectly, and explicitly or implicitly. In fact, the court found that no such representation was made by or on behalf of the respondent.
In cross-examination Mr Leslie referred to some of the negotiations between SBS and Deluxe as it pertained to the Applicant. He explained that Deluxe was not prepared to offer employment to SBS employees who had CSS superannuation entitlements. No reason was given, but once again, a reasonable inference can be drawn about the financial cost to Deluxe. Moreover, Mr Leslie explained that the Respondent’s decision, therefore, not to include the Applicant as “In Scope”, was a way to address the concerns that the Applicant had raised about her superannuation entitlements.
In cross-examination Mr Leslie conceded that he had, in fact, been considering secondment as early as October 2014, notwithstanding the provisions of his affidavit previously referred to. When challenged as to why SBS had not consulted with her about secondment before the outsourcing was formally entered into on 28 November 2014, he explained that in the context of the broader outsourcing negotiations, which were not finalised until 28 November, no formal decision had been made and thus no consultation was possible. Indeed, he explained that it would have been unwise to consult with her about secondment, in the circumstances. The court agrees. Clearly, this was a matter important to the Applicant but the court cannot help but wonder what difference it would have made, given the obligation to consult under the SBS agreement anyway.
The Applicant put to Mr Leslie that it was reckless for him to assume that she would accept secondment before the outsourcing deal was finalised. He disagreed. He reminded her that by not being “In Scope” SBS was retaining her employment, and her skill and expertise. The Applicant reminded Mr Leslie that she didn’t accept secondment. He observed, correctly on the evidence, that it was the Applicant’s decision to absent herself from the workplace, and her decision to resign. The line of questioning in fact reflects, once again, the Applicant’s misapprehension about her rights, and entitlements, in the context of the outsourcing.
The line of cross-examination the moved to precisely who, and how, her role was undertaken in her absence. On 27 January 2015, the Applicant’s role transferred to Deluxe but, of course, she was unable to fill it because of illness. It was put to Mr Leslie that no one from SBS was seconded in the supervision role that she would have performed but he explained, quite properly, that SBS didn’t know how long she would be off work for, so they didn’t make arrangements for another supervisor. The significance of this was the Applicant’s assertion that because SBS had not employed anyone to backfill her seconded position, that clause 31.1(b) of the SBS agreement was activated, ie, that she became redundant because she was no longer required for the efficient and economical operation of SBS. The court observes that it is a somewhat curious argument - that an employee who chooses not to accept secondment, and chooses to absent herself from the workplace, is made redundant because her employer didn’t backfill the position that she still retained. In any event, Mr Leslie’s response was quite clear - SBS believed that the Applicant’s role was required, and hoped that she would return to work. When it became clear that the Applicant would not return to work, SBS had to do something as a matter of practicality.
The focus of the cross-examination then turned to the secondment. The Applicant was one of two SBS employees who were seconded to Deluxe, but the other has since resigned. The Applicant put it to Mr Leslie that in the seconded position she would eventually physically relocate to a new purpose-built centre, operated by Deluxe. Mr Leslie agreed that that would occur, in time. He was aware, in general terms, that the Applicant would receive daily instructions from a Deluxe manager, whilst remaining an employee of SBS. It was put to him that it would be unmanageable for her to deal with conflicting instructions, for example as between the Deluxe manager, and her SBS manager. Mr Leslie indicated that he had considered this, but pointed out that many SBS employees have dual roles which are adequately managed.
He explained in cross-examination that until the Applicant resigned, she was fully protected as an SBS employee, and that her secondment did not change her status as such. He did not think that in a modern workplace, it would be difficult, let alone impractical, for the Applicant to work in a seconded position. The focus of the questioning appeared to be whether she was adequately consulted, for the purposes of the SBS agreement, about the secondment. The Applicant clearly had concerns, eg, about clarity around her role, and lines of accountability. Mr Leslie acknowledged that. He strenuously resisted the proposition that there was any pressure on the Applicant to resign but he did agree that if the Applicant resigned, SBS would not be obliged to pay any redundancy.
Mr Leslie agreed that, to his knowledge, there had been no meeting of the Applicant’s team to discuss the role that she would play as a seconded employee after the transfer of business. He disagreed, however, that no attempt was made to introduce the Applicant to the Deluxe manager. Again, the court cannot help but observe the irony of this line of questioning when the Applicant’s own case was that she did not accept the secondment, and the fact is that she absented herself from the workplace effectively from the time that she was advised of the secondment. It was therefore curious indeed for the Applicant to put to Mr Leslie that she was “ignored and marginalised”, something he strenuously denied. When she put it to him that the Respondent’s treatment of her had led her to resign, he emphasised that that was not the respondent’s intention. She complained that the Respondent asserted through Ms Muras that it didn’t require her consent to the secondment, and that she would have to comply with the reasonable direction. It was not suggested by the Applicant, nor indeed could it have been suggested, that either proposition was incorrect.
The focus of the questioning then turned to her unsuccessful application for annual leave. The Applicant’s perception about this issue is reflected in the questions she asked Mr Leslie, which was to the effect that she had been told she was too important to the successful transfer of the business to be allowed to go on annual leave. She suggested it was incongruous that she was so important to the transfer of the business that she could not get leave, but she was not consulted about the secondment. Mr Leslie denied that there was any incongruence, pointing out that the Applicant’s role was not changing post-secondment. She put to him that he was just hoping that she would resign, but Mr Leslie emphatically stated that it had “never crossed my mind at all and it was never my intention”. He insisted that the reason for not granting leave was clearly articulated, and was transparent.
It did emerge from the cross-examination, however, that for SBS the secondment of an employee was not a routine thing - indeed it was unusual. Mr Leslie agreed that there was no secondment policy in place at the time. He categorically denied that anyone on behalf of the respondent had ever represented that the secondment would be for seven years, emphasising that no one could possibly know for how long it would be.
Whilst the Applicant’s cross-examination of Mr Leslie was disjointed at times, two things emerged quite clearly. Firstly, there is no reason for the court to doubt any part of the evidence given by Mr Leslie. Secondly, and at the risk of repeating this, the Applicant’s misunderstanding about her role in the outsourcing is clearly apparent. She appears to have genuinely believed that she could decide whether to transfer to Deluxe or not when it is objectively apparent that it was not her decision.
The evidence of Jeremy Coutts
Mr Coutts is an Operation Manager, Managed Services for the respondent. His affidavit was affirmed on 7 June 2016. Since late January 2015, he reported to Mr Leslie. His responsibility was to lead a team of individuals who are responsible for administering particular aspects of a managed services agreement between SBS and Deluxe. He commenced employment with the respondent in November 2004, and at all relevant times the Applicant reported directly to him. He deposed to being present in a briefing on 8 October 2014 involving the Applicant, which was attended by Mr Leslie and Ms Muras. He deposed to forming the impression that the Applicant was focused on ensuring her superannuation entitlements were protected, and that she would remain a member of the CSS with access to the specific benefits provided for under that scheme. In this regard, the court accepts the evidence of Mr Coutts. The Applicant’s evidence allows the court to come to the same conclusion.
He deposed to the meeting with the Applicant and Ms Muras on 28 November 2014 during which the Applicant was informed that in response to the concerns she had raised about her superannuation entitlements, SBS would be retaining her employment, she was not “In Scope”, and would not be transferred to Deluxe. Instead, SBS would be seconding her to Deluxe. Mr Coutts deposed to his surprise that the Applicant was not pleased with the decision, even though retaining her as an SBS employee gave to the Applicant precisely what she wanted in terms of her superannuation benefits.
Mr Coutts deposed at paragraph 26 of his affidavit that during the course of the meeting, the Applicant said to Ms Muras: “I would like to be redundant and I would like a contract of employment with Deluxe.” It is important to note that the Applicant disputes she said this, but Ms Muras gave evidence to the same effect. For reasons previously stated, the court prefers the evidence of Ms Muras, and Mr Coutts in preference to that of the Applicant. In any event, Ms Muras made it clear that SBS did not consider the Applicant’s role redundant, and that she was still very much wanted to remain in her position. Mr Coutts also deposed to his belief that the Applicant had formed the view that she had been told that she would be transferred and offered employment with Deluxe and, as they couldn’t match her super, that must mean that she was entitled to a redundancy. Again, the totality of the evidence before the court leads it to conclude that that was, indeed, the Applicant’s belief and expectation, but there was absolutely no basis for it.
Mr Coutts deposed to a further meeting with the Applicant on 7 January 2015, that was attended by Ms Muras; Mr Anderson, the acting HR director for SBS; and Ms Forbes, the Applicant’s support person. The Applicant was concerned to ascertain how exactly the secondment would work, on a daily basis. She was given details in that regard. The Applicant expressed the belief that the arrangement wouldn’t work. She was assured that very little, if anything, would change in her role. The Applicant asked what would happen to her if she refused to go on the secondment. She was told that if she refused to comply with the lawful and reasonable direction from SBS, she would be in breach of her employment, and it would be addressed with the usual disciplinary procedures.
Mr Coutts deposed that the Applicant performed her normal duties up until Friday, 23 January 2015. On the 24th, the Applicant notified him to say that she was unwell and wouldn’t be at work next week. The week in question was the date when the walk-in stage of the outsourcing would formally commence.
Mr Coutts gave evidence about the Applicant’s request for annual leave. It was submitted in late October 2014, and requested leave for the period 2 February 2015 to 2 March 2015. He explained that the month-long period in which the Applicant had requested to take annual leave was critical because it coincided with the walk-in stage implementing the outsourcing. He explained that operationally, he needed “all hands on deck” to ensure that the transition to Deluxe was achieved as seamlessly as possible. Whilst Mr Coutts could not be specific as to when there was a discussion with the Applicant, it was certainly prior to January 2015 when he indicated to her that it was not operationally possible for him to approve the length of time off sought by the Applicant, during that period. He did suggest, however, that he might be able to approve a week or two weeks off during that period, or alternatively, a month later on in the year when Deluxe had settled in.
At paragraph 43 of Mr Coutts’ affidavit he sets out his reasons for not being able to grant the request:
After carefully considering Ms McJannett’s Annual Leave Request and my conversation with her, I made a preliminary decision that I was unable to grant the request because:
a. Ms McJannet had previous experience with similar transitions in circumstances where SBS had upgraded technology;
b. I was concerned about the potential impact the “walk-in” would have on Playout Operations continuity and quality. I was aware of the additional workload that would inevitably arise from the transition with Deluxe and wanted to ensure a smooth transition. Part of this included having as many relevant employees available to meet Deluxe and assist with the transition as possible;
c. Ms McJannett’s skills and experience in ensuring continuity and quality over this transition period would have substantially assisted in the ongoing operational delivery of Playout Operations during that period of time; and
d. I had already made a decision (and informed Ms McJannett) that I would give priority to Bronwyn Clark (On Air Presentation Coordinator, SBS) (Ms Clark), who was a member of Ms McJannett’s own team. This is because Mc McJannett and I were working with Ms Clark to have her reduce her annual leave accrual down to reasonable levels.
At paragraph 44 he deposed that at no point during his consideration of the Applicant’s annual leave request did he take into account the fact that the Applicant had raised concerns about the potential impact a transfer might have on her superannuation entitlements, that she wanted a redundancy, or that she considered she was entitled to a redundancy. He emphasised that in no way was his refusal to grant the annual leave request intended to be a punishment, but it was a purely business-oriented decision based on the operational and timing needs at the time.
The annual leave issue was raised at the meeting on 7 January. Ms Muras in effect made the same offer to the Applicant as Mr Coutts did at an earlier time. He also deposed to the further correspondence about the annual leave which took place after that meeting.
The Applicant cross-examined Mr Coutts. Whilst the Applicant cross-examined Mr Coutts about the meeting on 28 November 2014, and whilst she acknowledged that there were discrepancies between their accounts of this meeting, she did not put it to him that his account was incorrect. In the end result, nothing turns on this. The court prefers the evidence of Ms Muras, and Mr Coutts, in preference to that of the Applicant. He confirmed that on 28 November both the Applicant and himself were told that they were out of scope. He refuted firmly the suggestion that she had been offered three options consisting of an eligible termination payment, a redundancy, or secondment.
Mr Coutts insisted in cross-examination that the outsourcing would not affect the Applicant’s role, and that the secondment would have no significant change in her responsibilities. It is interesting for the court to observe that Mr Coutts, who is the witness who was most familiar with the Applicant’s role and responsibilities, and who was her direct supervisor for the longer period, would simply not accept the Applicant’s contention that the secondment was unreasonable, impracticable or unviable.
The court accepts the evidence of Mr Coutts. Nothing arose in cross‑examination that causes the court to reconsider any aspect of his evidence.
Evidence of Andrea Muras
Andrea Muras is the People and Culture Business Partner for SBS, reporting to the HR director. She commenced employment with SBS on 17 March 2014. Her affidavit was sworn 7 June 2016. Her affidavit gives details of the Applicant’s employment with SBS. She confirms that the Applicant resigned on 14 March 2016. She provides details of the Applicant’s position description and specific responsibilities. She was involved in the outsourcing project, and directly involved with the SBS communication and consultation plan pertaining to it.
At paragraph 36 of her affidavit further details emerge about the significance of the Applicant’s CSS retirement benefits. It seems that one of the benefits that the CPSU was very keen to ensure was protected for the benefit of members was the 54 years and 11 months early retirement entitlement for CSS members. The engagement of Towers Watson, and subsequently Mercer, was to attempt to ascertain what level of superannuation contributions would be required by Deluxe to ensure CSS members were no worse off.
Ms Muras gave evidence about the briefing that she attended with Mr Leslie and the Applicant on 8 October 2014. It is clear from her evidence that SBS had formed the view, and this was communicated to the Applicant, that the Applicant would not receive the benefit of the Mercer and Towers Watson reports unless she was “In Scope” because, before then, the calculations would become irrelevant. She also made it clear to the Applicant that SBS did not envisage that there would be any redundancies arising out of the process. This was because those employees some who were “In Scope”, would be offered employment by Deluxe on terms no less favourable than their current terms and conditions of employment with SBS. Those SBS employees not “In Scope” would still be engaged by SBS on the same terms and conditions. Moreover, it was clear from the evidence of Ms Muras that no representation was made to the Applicant that she would be “In Scope”. It is also clear that SBS had formed the view that the reports in question were assessments conducted on behalf of SBS and therefore it was up to SBS to decide who, and when, the information would be shared.
It was clear from the evidence of Ms Muras that the Applicant was very persistent in her requests to see the information even though, the court finds, at the time she made this request there was no reasonable basis for her to believe that she was “In Scope”, in circumstances where the decision had simply not been made.
Ms Muras gave evidence about the meeting with the Applicant and Mr Coutts on 28 November 2014. By way of background, she explained that during the course of the week commencing 24 November 2014 SBS had made some preliminary decisions including that the Applicant would remain an employee of SBS. Her reasons are given at paragraph 70 in the following terms:-
“a) From an operational perspective, in addition to the duties outlined in paragraph 8, her position involved liaising internally regarding content and programming with stakeholders within and outside the Technology and Distribution Division who were not part of the outsourcing project;
b) From a financial perspective, SBS was, by that time, seeking to reduce the costs of services and one such way to do this was by reducing the number of potentially affected employees who would transfer to Deluxe;
c) From a future management perspective, SBS had developed the FMO positions to assist in managing the MSA from the SBS side and Ms McJannett’s position would also assist SBS to do this.”
At paragraph 71 of her affidavit, Ms Muras further explained that as a result of the Applicant consistently flagging concerns about her superannuation entitlements, and in particular about how certain benefits within her superannuation fund could not be replicated should she be transferred to Deluxe, SBS decided to take this into account in determining that the Applicant would not be “In Scope”. Thus, the Applicant would retain her CSS membership, including the unique benefits that this fund affords to its members, and she believed that the Applicant would be happy with the outcome.
On 28 November the formal agreement with Deluxe was signed. The Applicant was determined not to be “In Scope”. The Applicant was one of eight employees in her section who were potentially affected by the outsourcing, but who retained their employment with SBS.
Ms Muras’ account of the meeting is consistent with that of Mr Leslie.
At paragraph 78 of her affidavit, Ms Muras expressed some surprise in that the Applicant’s reaction was the opposite to what she had anticipated. She formed the impression that the Applicant was not comfortable with the decision about secondment, or the information that was being communicated.
She deposed as to the conversations about the consequences of the decision that the Applicant was not “In Scope”, namely that the actuarial calculations about the superannuation would not be provided to her.
Ms Muras deposed at paragraph 81 that the Applicant said: “I would like to be made redundant. I would be happy to take up a contract with Deluxe directly, after I have received my redundancy.” As stated earlier in these reasons, there is a dispute about whether the Applicant in fact said these words. Mr Leslie deposes to the Applicant saying these words. The court prefers the evidence of Mr Leslie and Ms Muras over that of the Applicant. In any event, the court accepts that Ms Muras made it clear to the Applicant that she would not be offered a redundancy because her role was not redundant.
At paragraph 82 Ms Muras sets out evidence, which the court accepts, which once again reflects the Applicant’s misunderstanding of the situation. Ms Muras asserts that the Applicant said: “So what you’re telling me is that I’ve got three options. I can remain an SBS employee and work under a secondment arrangement with SBS, I can transfer to Deluxe or I can resign from my employment with SBS and you will pay me a lump sum payment.” Both Ms Muras, and Mr Coutts, immediately corrected the Applicant. It is clear that the outcome of the meeting was that the Applicant would remain employed by SBS, and be seconded to Deluxe. There was no transfer to Deluxe. There was no agreement about payment of a lump sum on resignation. The highest that can be put about the latter issue is that Ms Muras agreed that she would “speak with management regarding the possibility of an agreed settlement payment, which I understand you want me to do.”
Evidence was given about the subsequent communication between the Applicant and Ms Muras, especially her email of 3 December 2014 which contains the Applicant’s recollection that she was given the three options that are referred to above. Ms Muras responded to the Applicant’s email, correcting what she perceived to be the inaccuracies, on 8 December.
The extensive email exchange between Ms Muras and the Applicant is set out in the affidavit. From the Court’s perspective, this evidence really does not advance the issues before the court any further. Again, what is quite obvious to the court is that the Applicant had misunderstood, or misconceived her position in the outsourcing, and the decision that was made about secondment.
A meeting was held on 7 January 2015 to discuss such secondment. Mr Leslie was also present. The accounts of Ms Muras and Mr Leslie are largely consistent. The Applicant raised, and Ms Muras dealt with concerns that she raised about secondment.
There were subsequent communications following the meeting of 7 January 2015. It is clear that the Applicant was of what the court finds to be the mistaken view that she was entitled to a full redundancy payment. The communication from the Applicant made it very clear that she did not accept the secondment and gave no consent for it. She asserted that the decision was an unlawful and unreasonable direction.
Paragraphs 123 and 124 of Ms Muras’ affidavit are significant:-
123. As outlined in paragraph 122 above, I reached my decision that SBS was entitled to direct Ms McJannett to undertake the secondment, and drafted the letter of 6 February 2015 (Annexed to this affidavit and marked “Annxure AJM-47”) on that basis, based upon my knowledge of the SBS Agreement 2011, the Fair Work Act 2009 (Cth) and my discussions with SBS’s legal representatives regarding the decision to second Ms McJannett and SBS’s ability to direct Ms McJannett to undertake the secondment.
124. Ms McJannett’s:
a. concerns regarding the affect the transfer of employment would have on her employment (Particularly her superannuation entitlements) and the secondment arrangement;
b. requests to be provided with the actuarial calculations from the Towers Watson Reports and Mercer Reports;
c. enquiries regarding what she perceived as an entitlement to redundancy under the SBS Enterprise Agreement 2011; and
d. more general allegations made in paragraphs 15, 19, 20, 27, 28, 29, 30 and 33 of her Points of Claim that she had made complaints or inquiries about her employment,
had nothing to do with, and had no bearing whatsoever on, my decision that SBS was entitled to direct Ms McJannett to undertake to the secondment, or my decision to inform Ms McJannett of that conclusion in my letter of 6 February 2015.
Likewise paragraphs 125 and 126 are significant:-
125. As outline in paragraph 92, at all times during the Outsourcing Project, I believed, based on the information available to me (ie about the Project), my experience as a HR practitioner, and my review of the relevant provisions of the SBS Agreement 2011 and the Fair Work Act 2009 (Cth), that the situation did not trigger the redundancy clause (clause 31) in the SBS Agreement 2011 or the redundancy provisions of the Fair Work Act 2009 (Cth). My belief in this regard formed the basis for my decision that ms McJannett was not entitled to a redundancy payment, and no redundancy payment would be paid to her.
126. Ms McJannett’s:
a. concerns regarding the affect the transfer of employment would have on her employment (particularly her superannuation entitlements) and the secondment arrangement;
b. requests to be provided with the actuarial calculations from the Towers Watson Report and Mercer Reports;
c. enquiries regarding what she perceived as an entitlement to redundancy under the SBS Enterprise Agreement 2011; and
d. more general allegations made in paragraphs 15, 19, 20, 27, 28, 29, 30 and 33 of her Points of Claim that she had made complaints or inquiries about her employment,
had nothing to do with, and had no bearing whatsoever on, my decision that Ms McJannett was not entitled to, and would not be provided with, a redundancy payment.
Ms Muras was also aware of the annual leave issue raised by the Applicant. Mr Coutts was the Applicant’s direct line manager and was ultimately the maker of the decision. Nonetheless, he discussed this with Ms Muras, and the discussion is set out at paragraph 143 of her affidavit:-
143. During this discussion with Mr Coutts, he informed me of his reasons for declining the Annual Leave Request. I recall we had the following conversation using words to the effect of:
Mr Coutts: “Andrea, Jan has requested to take the period 2 February to 2 March as annual leave.
Me: Can you support her taking this leave?
Mr Coutts: No, I can’t. I’m concerned that this falls right at the beginning of the walk-in phase with Deluxe and we’ll need all hands on deck to help out with the transition and settling in the first few months. With Bronwyn also having a big leave balance we have to bring down, I don’t think I can approve it. It’s been hard to get Bronwyn to agree to reduce her annual leave, I don’t think we can rock the boat any further with having Jan off for a month just before Deluxe come in.
Me: Look, if you think you can afford to allow Jan to go, then of course, you should let her go. But your rationale sounds reasonable to me. If you can’t afford to give her the entire period, have you considered offering her some alternatives?
Mr Coutts: Yes, I’ve gone back to her to say she could have one week during that period, or she could take the whole month off, but just later down the track once Deluxe have settled in a bit. She doesn’t appear interested in either alternative.”
Ms Muras confirms that this issue was raised at the meeting on 7 January 2015 and she corroborates Mr Coutts evidence in this regard.
Ms Muras was cross-examined by the Applicant. The questions acknowledge that the Applicant and Ms Muras had different recollections about what was said at the meeting deposed to. In any event, Ms Muras specifically denied that the Applicant was given three options. A question was put about the Applicant’s email to Ms Muras dated 3 December 2014 which is, indeed, annexed to the affidavit of Ms Muras. It was put to Ms Muras that this email was proof of the contested matter, ie, that Ms Muras had in fact given the Applicant three options. Quite apart from the fact that Ms Muras denied that, what the email self-evidently is, is a mere assertion by the Applicant as to what was said at the meeting, which proves nothing. This does provide some insight into the Applicant’s very subjective, single-minded approach to the issues before the court. Much of the later correspondence from the Applicant reflects the same approach.
What did emerge from the evidence of Ms Muras, including cross‑examination, is the acknowledgement that whilst the Applicant had provided consent to SBS to provide her superannuation information to Towers Watson, the Applicant’s consent to the provision of the same information to Mercer was not obtained. Ms Muras apologised for this. As this was not a part of the Applicant’s claim, the evidence is not relevant. Nothing turns on it.
There is nothing further in the cross-examination of Ms Muras that is either relevant to the matters before the court, or which in any way detracts from the credibility of her evidence. The Court is able to independently find that it prefers the consistent evidence of Mr Leslie and Ms Muras to be preferred over that of the Applicant.
Evidence of Sarah Dickson
Sarah Dickson is the People and Culture Operations Manager for SBS. She has been in this position since commencing with SBS in or around June 2014. Her affidavit was affirmed 7 June 2016. Part of her responsibilities include oversight of SBS payroll operation including the payment of bonuses. Indeed, Ms Dickson’s evidence goes to the question of bonuses, but as the Applicant in closing submissions indicated that she was not pressing that part of the claim pertaining to the repayment of the bonus, this evidence is not relevant.
The Adverse Action Claim
Section 340 of the Fair Work Act provides:
Protection
(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.
Note: This subsection is a civil remedy provision (see Part 4-1).
(2) A person must not take adverse action against another person (the second person ) because a third person has exercised, or proposes or has at any time proposed to exercise, a workplace right for the second person's benefit, or for the benefit of a class of persons to which the second person belongs.
Note: This subsection is a civil remedy provision (see Part 4-1).
Section 341 defines the key concept of “workplace right”:
Meaning of workplace right
(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;
(b) court proceedings under a workplace law or workplace instrument;
(c) protected industrial action;
(d) a protected action ballot;
(e) making, varying or terminating an enterprise agreement;
(f) appointing, or terminating the appointment of, a bargaining representative;
(g) making or terminating an individual flexibility arrangement under a modern award or enterprise agreement;
(h) agreeing to cash out paid annual leave or paid personal/carer's leave;
(i) making a request under Division 4 of Part 2-2 (which deals with requests for flexible working arrangements);
(j) dispute settlement for which provision is made by, or under, a workplace law or workplace instrument;
(k) any other process or proceedings under a workplace law or workplace instrument.
Prospective employees taken to have workplace rights
(3) A prospective employee is taken to have the workplace rights he or she would have if he or she were employed in the prospective employment by the prospective employer.
Note: Among other things, the effect of this subsection would be to prevent a prospective employer making an offer of employment conditional on entering an individual flexibility arrangement.
Exceptions relating to prospective employees
(4) Despite subsection (3), a prospective employer does not contravene subsection 340(1) if the prospective employer makes an offer of employment conditional on the prospective employee accepting a guarantee of annual earnings.
(5) Despite paragraph (1)(a), a prospective employer does not contravene subsection 340(1) if the prospective employer refuses to employ a prospective employee because the prospective employee would be entitled to the benefit of Part 2-8 or 6-3A (which deal with transfer of business).
The Applicant’s claim in this regard is particularised at [14] – [25] and [27] – [43] of her Point of Claim.
The relevant evidence before the Court came from the Applicant, Mr Anderson, Mr Leslie, Mr Coutts and Ms Muras. The Court finds that:
a)The Applicant was never “In scope”, meaning that she was not, indeed never was, offered employment with Deluxe. There was, therefore, no offer of employment with Deluxe that was offered as an option to her.
b)The Applicant was never offered a financial settlement (beyond her usual statutory benefits on retirement) whether described as a redundancy or otherwise, as a consequence of the outsourcing. Even the Applicant conceded in cross-examination that her expectation of a redundancy was based on her belief of her entitlement, and not a representation made to her. In any event, no such representation was made.
c)The Applicant was directed by the Respondent to undertake a secondment with Deluxe, on the basis that she would still remain an employee of the Respondent.
d)The Respondent did not inform the Applicant that an alternative to accepting the secondment was to resign. The Applicant was, in effect, reminded of her obligations under the SBS Agreement and the consequences of not complying with a lawful direction.
e)As the Applicant was not “In Scope”, information about the effect on her employment of the Outsourcing was irrelevant.
f)The decision about which employees were “In Scope” and which were not, was made by SBS and by Deluxe (who did not make offers to all SBS employees who had CSS benefits). SBS accordingly decided to retain the Applicant’s employment as well as other employees in a similar position to that of the Applicant.
g)The Applicant knew that Deluxe could not match her CSS entitlements and thus formed the view that she might get a redundancy.
h)The Applicant was unable to establish that she was entitled to a redundancy payment. Redundancy is dealt with in Part Eight of the SBS Agreement. The relevant clause for present purposes is 31.1:
31.1 SBS may determine that an Employee is redundant where:
(a) their skills or talents are no longer relevant to program requirements; or
(b) they are no longer required for the efficient and economical operation of SBS; or
(c) their services cannot be used effectively because of technological change or other changes in work practices; or
(d) their function is transferred to another location and they are not willing to relocate.
It is not clear to the Court which provision within 31.1 the Applicant contended applied to her. The evidence is clear: (a) did not apply because SBS wanted to retain the Applicant’s services. The same conclusion is apparent as regards (b) and (c). The only possible discernible contention is that (d) applied.
The evidence does indicate that the proposed secondment would have (in time) involved the Applicant spending some time in a different location. The team that the Applicant led at SBS, and who were “In Scope” would eventually be relocated to a different location. But the Applicant’s clear evidence in cross-examination was that she was convinced that her secondment to Deluxe placed her in an untenable position because of her belief that it involved “de-skilling”; would make performance management difficult; raised workplace health and safety issues; involved a new work location; raised problems with supervising a team located physically apart from her; and involved new training for her. What was clear from her evidence, therefore, is that her concern about secondment extended much more broadly than “another location” referred to in 31.1(d). It is hard to see how the Applicant can rely on 31.1(d).
In any event 31.1(d) refers to the employee’s function being transferred to another location. The evidence does not satisfy the Court that this was, in fact, the case. Indeed the impression created from the totality of the evidence is that the secondment would not necessarily have involved a total relocation of the Applicant’s function to the Deluxe relocated venue, but that there was a component of her work that could still be retained on SBS premises.
It follows from the above that Clause 31.1 of the SBS Agreement was not activated on the facts of this case. The Applicant may have genuinely believed, or perhaps even wished that, the outsourcing might lead to her redundancy, but the facts before the Court do not establish that. Indeed the opposite appears correct – SBS made a concerted effort to retain the Applicant. She chose to resign.
There is, therefore, no workplace right for the purposes of 340(1) of the Fair Work Act. Moreover, there has been no adverse action against the Applicant because:
a)SBS did not dismiss the Applicant – she resigned; and
b)There was no injury to the Applicant, or her employment. No aspect of the proposed secondment would amount to an injury; and
c)The proposed secondment would not have altered the position of the Applicant to her prejudice. No aspect of the proposed secondment would have had that effect; and
d)There was no discrimination between the Applicant and other SBS employees. Indeed the secondment was seen by SBS as a way for the Applicant both to retain her employment with SBS and her CSS superannuation entitlements.
The breach of contract and breach of SBS Agreement claims arising from non-payment of redundancy
There is a substantial factual overlap between the evidence pertinent to this aspect of the claim, and the adverse action aspect of the claim discussed above. The present focus is, again, on the SBS Agreement. The Applicant alleges that in directing her to undertake a secondment, and in determining that she would not receive redundancy payments, SBS contravened s 50 of the Fair Work Act which states:
Contravening an enterprise agreement
A person must not contravene a term of an enterprise agreement.
Note 1: This section is a civil remedy provision (see Part 4-1).
Note 2: A person does not contravene a term of an enterprise agreement unless the agreement applies to the person: see subsection 51(1).
Moreover the Applicant contends that the same actions constituted a breach of the “Good Faith Term” of her contract with SBS.
The first part of this claim can be dealt with briefly. The SBS Agreement does not entitle the Applicant to a redundancy. The terms of clause 31.1 have been discussed above. There is nothing in the evidence before the Court that suggests the Applicant had an entitlement to a redundancy, other than in her own mind.
The Applicant’s claim, however might be that the direction as to secondment constituted workplace change as defined in clause 41 of the SBS Agreement, and that she was not consulted about that in accordance with that clause, thus breaching s 50 of the Fair Work Act. Clause 41 of the SBS Agreement states:
41. Workplace Change
41.1 Notification
41.1.1 Where SBS has developed a proposal to introduce major workplace change that is likely to have significant effects on Employees, they will notify the affected Employees.
41.2 Significant Effects
41.2.1 Significant effects include:
(a) termination of employment;
(b) major changes in the composition, operation or size of SBS’s workforce or in the skills required;
(c) the elimination of diminution of job opportunities, promotion opportunities or job tenure;
(d) the alteration of hours of work;
(e) the need for retraining og transfer of Employees to other work locations; and
(f) the restructuring of positions.;
provided that where this Agreement makes provision for alteration of any of the matters referred to herein an alteration shall be deemed not to have significant effect.
The Court accepts that the Outsourcing constituted ‘major workplace change’ that is likely to have “significant effects” on the Applicant. This meant that the consultation provisions were activated. There is ample evidence before the Court for it to be satisfied that SBS complied with its obligation to consult with the Applicant both before and after a determination was made that the Applicant was not an “In Scope” employee. In other words, the Applicant was consulted about the Outsourcing, and she was then consulted about the secondment.
The meaning of consultation has been judicially considered in recent times, e.g CFMEU v Port Kembla Coal Terminal Ltd (No 2) [2015] FCA 1088 (8 October 2015) Murphy J, and CFMEU v BHP Coat Pty Ltd (2016) FCA 1009 (26 August 2016) Logan J. Two paragraphs from the latter case are instructive in the present matter:
59.While cl 47 of the Enterprise Agreement, set out above, gives “Consult” or “Consultation” a particular meaning for the purposes of that agreement, that meaning is not, in my view, at variance with a meaning which one might have given those words in any event, having regard to prior authority. I had occasion to consider that meaning in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Limited [2010] FCA 591; (2010) 198 IR 382 in which, at 395, [44] - [45], I observed:
... A key element of that content is that the party to be consulted be given notice of the subject upon which that party’s views are being sought before any final decision is made or course of action embarked upon. Another is that while the word always carries with it a consequential requirement for the affording of a meaningful opportunity to that party to present those views. What will constitute such an opportunity will vary according the nature and circumstances of the case. In other words, what will amount to “consultation” has about it an inherent flexibility. Finally, a right to be consulted, though a valuable right, is not a right of veto.
To elaborate further on the ordinary meaning and import of a requirement to “consult” may be to create an impression that it admits of difficulties of interpretation and understanding. It does not. Everything that it carries with it might be summed up in this way. There is a difference between saying to someone who may be affected by a proposed decision or course of action, even, perhaps, with detailed elaboration, “this is what is going to be done” and saying to that person “I’m thinking of doing this; what have you got to say about that ?”. Only in the latter case is there “consultation”. ...
An appeal from this judgment was subsequently dismissed by the Full Court.
60.In the present case, it is necessary not just to remind oneself that a person’s right to be consulted does not confer any right of veto. It is also necessary to understand that the cl 47 definition affirms what an ordinary understanding of the word, “consult” would in any event suggest, which is that the obligation to consult does not carry with it any obligation either to seek or to reach agreement on the subject for consultation. Consultation is not an exercise in collaborative decision-making. All that is necessary is that a genuine opportunity to be heard about the nominated subjects be extended to those required to be consulted before any final decision is made. And it bears repeating in this case that that final decision is not the existence of the particular surplus. That genuine opportunity entails furnishing such information about the occasion for consultation as is reasonably necessary for the making of suggestions in respect of the subject for consultation and being receptive to any resultant suggestions. It does not mean that one cannot approach consultation with a particular outcome in mind, only that one’s mind not be unduly fixed.
The Applicant appears to have taken the view that the consultation involved a right of veto, or was an exercise in collaborative decision making. That is clearly not the case. The Applicant was consulted about the outsourcing, and then about the secondment. Her complaint in this regard is not made out.
The next element of the Applicant’s claim seems to be, doing the best the Court can to understand her claim, that the direction to undertake an indefinite secondment, and not to receive a redundancy payment, was a breach of a Good Faith term of her contract with SBS. The Court would have been assisted by some elucidation by the Applicant of this aspect of her claim. Counsel for SBS did what he could to assist the Court in this regard but, with respect to him, he seemed as much in the dark as the Court was in relation to this part of the Applicant’s claim.
In Regulshi v State of Victoria [2015] FCA 206 (13 March 2015) Jessup J had opportunity to consider an implied Good Faith Term in the context of an adverse action claim. At [219] Jessup J states:
Turning to the second implied term relied on by the Applicant, the “good faith term”, his counsel was unable to refer me to any decided case in which it had been held that there was, in contracts of employment as a class, a term expressed as the Applicant did in this case (see para 209 above). Much has been written, of course, about the requirement of good faith in the exercise of powers and discretions under commercial contracts, and the application of analogous principles in an employment context was discussed by Mr Irving in The Contract of Employment, 2012, at para 8.29. But I do not believe that the existence of a term expressed as the Applicant has done in this case – that the parties “would act in good faith towards each other” – has ever been suggested. As counsel for the Applicant acknowledged, in Commonwealth Bank of Australia v Barker [2014] HCA 32; (2014) 312 ALR 356 French CJ, Bell and Keane JJ left open the question whether “there is a general obligation of good faith in the performance of contracts” (312 ALR at 371 [42]). In the present case, this very large question received scant attention in the submissions made on behalf of the Applicant. Neither should it have. For reasons which follow, the facts of the case do not approach the point at which concepts of good faith, however expressed, might come into play.
The present Court finds itself in a similar position. The evidence in the present case does not approach the point at which concepts of good faith, however expressed, might come into play. There is no evidence whatsoever in this case that SBS, or any of its staff, let alone the witnesses called in its case, acted in bad faith towards the Applicant. Indeed the opposite is true. SBS and the employees appear to have acted in good faith towards the Applicant at all relevant times, even after she resigned. This part of the Applicant’s case fails.
Claim of breach of SBS Agreement by failing to provide information
Again there is substantial overlap in the factual matters which underpin this aspect of the claim, and other aspects discussed above. The basis of the Applicant’s claim in this regard is [14] – [26], and [39] – [40] of her Points of claim. She asserts that SBS breached clauses 37 and 41 of the SBS Agreement.
Clause 37 of the SBS Agreement states:
37.EMPLOYEE CONSULTATION
37.1 SBS is committed to consulting and sharing information with Employees and their nominated representatives about workplace matters affecting them.
37.2 Information may be shared, for example, through Divisional and branch meetings, Corporation-wide meetings, newsletters, SBS intranet, as appropriate.
37.3 SBS will discuss with affected Employees workplace matters affecting them.
Clause 41 of the SBS Agreement has been reproduced above. The Applicant’s contention is that in relation to the decision by SBS to remove her from the scope of any transfer of employment and further direct that she undertake an indefinite secondment with Deluxe, SBS did not consult with her or provide relevant information as to the decisions.
The Court has already dealt with this issue. There is no basis for the claim.
Claim that SBS engaged in conduct contravening S.345 of the Fair Work Act
Section 345 states:
Misrepresentations
(1) A person must not knowingly or recklessly make a false or misleading representation about:
(a) the workplace rights of another person; or
(b) the exercise, or the effect of the exercise, of a workplace right by another person.
Note: This subsection is a civil remedy provision (see Part 4-1).
(2) Subsection (1) does not apply if the person to whom the representation is made would not be expected to rely on it.
The Applicant alleges that Ms Muras represented to her that:
a)She would attempt to obtain a financial settlement of an amount to be advised, as an alternative to attempting an offer of employment with Deluxe, or undertaking a secondment with Deluxe whilst remaining an employee of SBS; and
b)She could not be entitled to a redundancy under the Fair Work Act or the SBS Agreement.
The Applicant’s claim fails. The evidence established the Court’s satisfaction that:
a)It simply did not occur as contended by the Applicant. Ms Muras merely conveyed to the Respondent the Applicant’s request for these matters, which was declined; and
b)Occurred but was entirely accurate and true. The reasons for this are stated above.
Claim that SBS engaged in conduct contravening S.343 of the Fair Work Act
Section 343 states:
Coercion
(1) A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to:
(a) exercise or not exercise, or propose to exercise or not exercise, a workplace right; or
(b) exercise, or propose to exercise, a workplace right in a particular way.
Note: This subsection is a civil remedy provision (see Part 4-1).
(2) Subsection (1) does not apply to protected industrial action.
The Applicant claims that the direction given to her by Ms Muras on behalf of SBS, both orally on 7 January 2015, and in writing by way of letter dated 6 February 2015, to attempt secondment or resign., contravenes s.343 of the Fair Work Act. This claim fails. The Court is not satisfied that the Applicant was ever told that she could either accept the secondment or resign. She was certainly directed to undertake the secondment. This was in accordance with 1.6.1 of the SBS Agreement that states:
1.6.1 SBS may direct an Employee to carry out duties within the Employee’s skill, competence and training consistent with the classification structure of this Agreement, provided that such duties are not designed to promote deskilling.
The evidence before the Court satisfies it that the seconded role involved duties “within the employee’s skill, competence and training” and that her proposed duties were neither designed to, or in fact involved, deskilling.
There was nothing unlawful, illegitimate or unreasonable about the SBS direction to the Applicant.
In any event the Applicant has not led evidence to satisfy the Court what workplace right the coercion was directed to.
The Court has done the best it can to understand the Applicant’s claim, as unclearly drawn as it is. The Court finds, based on the totality of the evidence before it, that none of the Applicant’s claims are supported by the evidence.
The Application is dismissed.
I certify that the preceding one hundred and fifty-four (154) paragraphs are a true copy of the reasons for judgment of Judge Altobelli
Date: 12 December 2016
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