Mr David Smith v Jones Lang Lasalle (Qld) Pty Limited, Richard Fennell, Julie Skinner, Lee Mclaughlin, Candice Redmond
[2024] FWC 3413
•9 DECEMBER 2024
| [2024] FWC 3413 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Mr David Smith
v
Jones Lang Lasalle (Qld) Pty Limited, Richard Fennell, Julie Skinner, Lee Mclaughlin, Candice Redmond
(C2024/5365)
| COMMISSIONER SIMPSON | BRISBANE, 9 DECEMBER 2024 |
Application to deal with contraventions involving dismissal – jurisdictional objection that Applicant not dismissed – Applicant alleges the Respondent repudiated his contract of employment bringing employment to an end – In the alternative alleged the Applicant forced to resign – Applicant not dismissed – Application dismissed.
On 1 August 2024, Mr David Smith (the Applicant) made an application to the Fair Work Commission (the Commission) under section 365 of the Fair Work Act 2009 (Cth) (the Act) to deal with a general protections dispute involving dismissal. The Respondents in the matter are Jones Lang Lasalle (Qld) Pty Limited (JLL), Richard Fennell, Julie Skinner, Lee McLaughlin and Candice Redmond (collectively the Respondents).
The individual respondents hold the following positions with JLL:
·Mr Richard Fennell - Head of Strategy and Property and Asset Management
·Ms Julie Skinner - Head of Human Resources, Australia and New Zealand
·Ms Lee McLaughlin - Account Director for ISPT
·Ms Candice Redmond - Head of Retail Property Management, Qld.
JLL raised a jurisdictional objection that the Applicant was not dismissed, and instead that the employment ceased at the Applicant’s initiative.
On 22 August 2024, I issued a Notice of Listing and Directions to the parties regarding the jurisdictional objections. The jurisdictional hearing was held on 17 September 2024 and 29 October 2024.
The Applicant was granted leave to be represented by Mr Troy Spence, Counsel instructed by Ms R Pezzutti, Solicitor of IRIQ Law and the Respondents were represented with leave by Mr Ken Brotherson, Counsel instructed by Ms Charlotte Fenton, Solicitor of Corrs Chambers Westgarth.
Evidence
The Applicant provided a statement dated 10 September 2024.[1] The Applicant confirmed he is currently the Senior Centre Manager at the Wintergarden Shopping Centre employed by CBRE in the same role he formerly held with the Respondent.
The Applicant filed a statement from Ms Meredith Macrae, Regional Manager ISPT Portfolio Qld with JLL, however subsequently advised that he did not seek to rely on it and withdrew it.
The Respondent tendered a bundle of documents which were identified as the Respondent’s tender bundle,[2] and the Employment Contract of Meredith Macrae.[3] The Respondent also filed a statement of Ms Julie Skinner dated 9 September 2024.[4]
JLL had been engaged by ISPT, a property investment firm to perform property and asset management functions for its Australian assets, including the Wintergarden Shopping Centre in Brisbane. The Applicant was based at the Wintergarden Centre at the time he asserts he was dismissed.
Since November 2021, the Applicant was employed as the ‘Senior Centre Manager, PAM National – ISPT’ and was responsible for and based at the Wintergarden Shopping Centre.
Prior to this, the Applicant had been employed by Abacus Group from October 2015 and subsequently transferred to JLL in May 2018 when JLL became the property manager of the Centre he was responsible for at the time.
The Applicant submitted that in March 2024 JLL was advised by ISPT that effective 30 June 2024, it would no longer be performing property and asset management services for ISPT properties including the Wintergarden Centre. Due to this, the Applicant’s position would no longer be required. The Applicant also submitted that he was not part of the Transferring Employee Group that would transfer to CBRE to continue working on ISPT’s assets.
Under cross-examination, the Applicant accepted that he was aware there was a re-tender of the contract with ISPT to CBRE during the latter half of 2023. The Respondent noted that the tender took place in October 2023 and submits that this gave the Applicant notice that there was some uncertainty as to whether his role with the Respondent would continue. The Applicant agreed that he knew that CBRE is a direct competitor of the Respondent.
The Applicant accepted that as part of his contract, at clause 12 it stated that he may be asked to travel to other locations (including interstate) to perform his role.
From 27 March 2024 to 28 June 2024, the Applicant stated that he participated in various meetings and sought clarity on JLL’s intentions in relation to his employment as his role would no longer be required as of 30 June 2024. The Applicant submitted that during this period JLL did not provide sufficient clarity on any suitable role it proposed to offer the Applicant for consideration.
Between 2 April 2024 and 23 May 2024, the Applicant was in contact with three HR personnel of JLL and was told that no “comparable roles” had been identified for him.
On 11 April 2024, the Applicant was in contact with CBRE regarding the transition of some JLL employees at the Wintergarden Centre who were transferring over to CBRE. During this contact, the Applicant also informed CBRE he was interested in taking the role at the Wintergarden Centre under CBRE.
On 13 May 2024, the Applicant was made aware that the Respondent was willing to waive non-compete clauses for centre managers to transfer to CBRE. The Applicant gave evidence under cross examination that he was reluctant to take this option and lose his long service leave entitlements.
On 16 May 2024, in the course of the Applicant’s discussions with CBRE regarding the transfer of the Wintergarden Centre, CBRE informed the Applicant that he “will have a role at Wintergarden as a Senior Centre Manager when the time comes that you decide what you would like to do in the future”.
On 20 May 2024, the Applicant sent an email to Evana Varvaressos and Annabelle Larue of the Respondent that included the following:
“……….
Hi Annabelle / Evana
As you are no doubt aware, on 27 March 2024, I was advised that as a result of the termination of the PMA with ISPT, that my position was to be made redundant, effective June 30 2024. This has been an extremely stressful time for me and my family and I have taken advantage of multiple EAP services offered by JLL, including legal advice.
In accordance with the JLL Redundancy Policy (23 March 2021), which has been triggered, I understand redeployment options were explored. Unfortunately, I understand no suitable alternative position with comparable renumeration and responsibilities has been found. As such, JLL will be required to notify me of my redundancy package.
In accordance with Fair Work Australia guidelines, official notice of my redundancy must be given 5 weeks prior to the redundancy date (being 30 June 2024). 5 weeks’ notice is required as I have worked for JLL for at least 2 years and am over 45 years of age. This means that JLL must provide me with official notice by 24 May 2024, as my role has already been made redundant.
In light of the above, could you please provide official notice and confirm all details for my redundancy, effective from 30 June 2024, so I can consider the terms of the redundancy and have everything in order for 24 May 2024.
I look forward to hearing from you.
David”
On 20 May 2024 at 4.49pm, Ms Skinner sent an email to Ms Varvaressos, Mr McLaughin, Mr Fennell, Ms Degotardi and copying in Ms Larue as follows:
“…………..
Hi Evana,
While I appreciate David’s concern and requirement for information, technically his employment is not being made redundant from JLL. The client ISPT will cease their contract, but David is still a JLL employee and the intention, as far as I understand it, is to retain his employment and to find a comparable role. David says that he has been advised his role will be redundant. I am sure that is not the case but rather an assumption given the end of the ISPT account.
David is not quoting Fair Work laws. He has misinterpreted the ‘notice period’ for ‘giving notice of intention to make his role redundant’. JLL is obligated to advise him of redundancy (if applicable) in writing – if and when it is applicable. JLL would be obligated to pay out David’s notice period if there were any intention of making his role redundant and not being requested to work out the notice period (3 months).
If David has been in contact with CBRE about future opportunities and he wishes to accept a role with CBRE, then David will need to resign from JLL and seek approval for a waiver of notice period and restraints from JLL. This request will need to be put in writing to Richard and Lee and then a decision made – depending on whether JLL has a comparable role to offer David closer to the end of June.
Having said that I can see that David is asking for clarity and more information about his own role and I can understand that uncertainty may cause concern about his future. If the decision is to make his role redundant from JLL, then all entitlements would be communicated at that time. Not before.
Richard, if we intend to keep David as an employee past 30th June without a defined role, then we will need a plan
on what he will be doing and for which client. If there is no plan, then we will need to agree on an approach to
confirm his employment one way or the other. I think 1st June is the latest we can wait until that communication needs to happen. Would you agree?
Evana/Annabelle/Lee, would you like me to discuss this with David?
Cheers,
Julie
………..”
On 20 May 2024, Ms Julie Skinner and Mr Richard Fennell discussed via email that the status of the Applicant was “await resignation”. The Respondent noted they do not intend to pay the Applicant redundancy, but instead the opportunity to resign and request a waiver of the notice period and restraint if he intends to take a role with CBRE. The Respondent identified that their preference was not to retain the Applicant as an employee, but they would attempt to redeploy the Applicant if he did not resign.
At 5.15pm that day, Mr Fennell sent an email to Ms Skinner and the other parties Ms Skinner emailed at 4.49pm as follows:
“………
Hi Julie
I think we provide staff who we have not identified a role for and have a preference to stay with the Asset an ability to resign and request a waiver of the notice period and restraint. Similar to what Stacey Phipps has done of which we have accepted.
These would be the staff listed below as a Transfer of which David is one. Otherwise we continue to actively redeploy. JLL has plenty of Property Management work to do and always roles to fill.
I’m not going to pay a redundancy to anyone who wants to stay on the asset and get a job the following day with CBRE on the same terms.
We can then assess on a case by case basis.
Attached is the current list.
…………..
| State | Name | Pref: JLL/ Transfer | Status | Comment |
| ……. | ………………. | ………….. | ………………… | ……………………………… |
| QLD | David Smith | Transfer | Await Resignation | Preference to stay with asset, offered another role and declined |
| …… | …………… | …………. | ………………….. | …………………………………. |
Best Regards
Richard
……”
At 5.43pm, Ms Skinner responded by email including the same parties as follows:
“
………….
Thanks Richard,
For all the “Await Resignation” do we know if CBRE has approached and offered and the JLL employees are keen to accept CBRE? If this is the case with David then we may need to give him guidance on the process of resignation and request to waive as per Stacey’s e.g. Thanks.
Evana/Annabelle, please confirm how you wish to proceed? Are you and Lee happy to discuss with David or would you like me to? Thanks.
Cheers
Julie
……”
On 21 May 2024, Mr Fennell responded to the same email group as follows:
“…..
Hi Julie
I do believe CBRE has approached a number of the Centre Managers including David Smith.
I agree we give the one who wish to stay with the asset guidance.
Can I suggest we communicate/write to them along the lines of
We understand that you wish to stay on the asset you currently manage and have been approached by ISPT and CBRE to do so. If this is the case we are willing to consider your resignation with a request to waive the notice period and restraints. If you could put this request to JLL in writing. Otherwise we confirm our continued intention to redeploy you within our Property and Asset Management business. We are confident of finding a role for you
Best regards
Richard
…….”
On 23 May 2024, Annabelle Larue sent an email to the Applicant as follows:
“Hi David,
Acknowledging receipt of your email. I have escalated your concern and Julie Skinner who will be reaching out to you to discuss.
Kind Regards,
Annabelle”
On 28 May 2024, a meeting was held with Ms Skinner and the Applicant. The Applicant recorded this meeting on his phone without informing Ms Skinner, and later produced a clean copy of the transcript.
During the meeting Ms Skinner confirmed that no “comparable roles” had been identified for the Applicant to be redeployed into. The Applicant also submitted that Ms Skinner pressed him to ascertain if he had been offered a job with CBRE. The Applicant recalled that Ms Skinner stated that if JLL could not offer a comparable role they would then discuss alternative options which might include roles at a lesser level or pay. The Applicant claimed that he had not been offered a position by CBRE.
The Applicant submitted that Ms Skinner stated that he would not be made redundant as Mr Fennell and Ms McLaughlin believed there was “enough work to keep the Applicant busy”, but specific details about the Applicant’s future role should be discussed with Mr Fennell. The Applicant noted that he expressed that a comparable role for him would be retail oriented with development opportunities and responsibilities, not just a management level position as he considered these were crucial for his career satisfaction and motivation.
On 31 May 2024, the Applicant received an email from Ms Skinner reassuring him that despite there being uncertainty on a comparable role, there was no cause for concern about ongoing employment. Ms Skinner requested that if the Applicant was approached by CBRE he put his decision in writing and the Respondent would review his notice period and restraint clauses. In internal text messaging, Ms Skinner expressed that it would be great if the Applicant was approached by CBRE. On 3 June 2024, the Applicant responded raising his concerns with JLL’s process so far.
On 13 June 2024, the Applicant attended a further meeting with Ms Skinner. The Applicant recorded this meeting on his phone without informing Ms Skinner, and later produced a clean copy of the transcript.
The Applicant recalled during the meeting that Ms Skinner advised that JLL was legally obligated to provide him with a comparable role instead of redundancy and continued to press him on if he had been offered a CBRE role. The Applicant further submitted that Ms Skinner advised the Applicant that he had the option of resigning, asked twice if he had plans to retire and if so JLL could perhaps consider offering a negotiated exit and that Mr Fennell expected CBRE to offer the Applicant a job. The Applicant claimed that he had not been offered a position by CBRE.
On 19 June 2024, the Applicant met with Mr Fennell. The Applicant recorded this meeting on his phone without informing Mr Fennell, and later produced a clean copy of the transcript.
During the meeting Mr Fennell advised that JLL were not making the Applicant redundant and were trying to find another job for him and advised that if he received an offer from CBRE and wished to resign, JLL would consider waiving his notice period and non-compete clauses and paying out or transferring his long service leave entitlements upon written request. Mr Fennell also suggested the Applicant speak to Mr Brett Stack, Head of Property and Asset Management about specific details of his unwritten benefits like flexible working conditions and carparking being transferred to CBRE if he did obtain a position with them. The Applicant claimed that he had not been offered a position by CBRE.
The Applicant submitted that he did not trust that he would receive his long service leave entitlements if he were to resign for a job with CBRE or anywhere else despite Mr Fennell’s suggestion to request the long service leave payout in writing.
On 21 June 2024, the Applicant submitted that he followed up with Mr Stack requesting to catch up as suggested by Mr Fennell. Mr Stack informed him that he had been in Melbourne and had left all retail matters for Queensland with Ms Redmond, who he assumed the Applicant would be reporting to.
On 26 June 2024, the Applicant met with Ms Redmond. The Applicant recorded this meeting on his phone without informing Ms Redmond, and later produced a clean copy of the transcript.
The Applicant submitted that in the meeting he was advised for the first time of the potential “spaces” or “projects” he could work on. The Applicant submitted that Ms Redmond did not provide him with job descriptions, letters of offer or remuneration advice for any of the suggested projects. The Applicant responded to these suggested projects, advising that he did not wish to work with a particular client as he had worked with them before, that he did not have the required experience for another of the roles and that the main reason he took up the role with JLL was the redeployment aspect. The Applicant claimed that he had not been offered a position by CBRE.
The Applicant alleged that he asked Ms Redmond for clarity on if it was envisaged that he would do all three roles at once, to which no clear response was given. Further, the Applicant sought the proposed projects be provided to him in writing, reiterated the need for a comparable role or redundancy and shared the impact of this process and the uncertainty on his wellbeing.
On 28 June 2024, the Applicant along with his daughter as support person met with Mr Fennell, Ms Skinner and Ms McLaughlin. The Applicant recorded this meeting on his phone without informing the other parties, and later produced a clean copy of the transcript.
The Applicant submitted that he was presented with two options:
1.Assume responsibilities typically handled by the Head of Retail in Queensland – tasks a couple of levels above his current role, excess tasks of the Head of Retail in Queensland role. Remuneration at similar level and pay grade as current role, role title of “Director, Property & Asset Management.”
2.Exit package including an ex gratia payment equivalent to 8 weeks remuneration, one month’s pay, two months’ pay in lieu of notice, pay out of accrued leave.
The Applicant submitted that the proposed exit package ex gratia payment was 6 weeks less than the 14 weeks he would have been entitled to if he had been made redundant.
During the meeting, Ms Skinner mainly read from a script, and said the following:
“…While there is great empathy and recognition of the difficulty that you and your colleagues on the ISPT account have experienced over the past months, there appears to be no recognition of the efforts extended to secure your peace of mind and on-going employment. Many people have been working hard to reassure you and to secure the future of all the impacted ISPT account people.
David, the response received from you throughout the past 3.5 months and the lack of partnership to work a solution for your own future, plus comments made by you about client partnerships raises serious concerns about any on-going relationship.”
The Applicant submitted that Mr Fennell then insisted that he make his intentions clear on where he would be on 1 July 2024, reminded him that he still had a job and unless he had intentions to choose the exit offer, he was expected to attend work on Monday. The Applicant said he would like to consider the options and requested them be emailed to him.
After the meeting, the Applicant was emailed correspondence regarding the proposed negotiated exit package. The attached letter stated:
“…
As communicated, the intention was to re-deploy you to another JLL role and one that was a comparable role in career level and remuneration.
…
David, you have clearly communicated that you are not interested in redeployment opportunities from 1st July 2024 onwards.
…
Given the situation outlined above JLL is prepared to negotiate an exit of employment with you. To be clear, this separation is not on the basis of a redundancy of role. Your employment would be terminated on 30th July 2024.Between now and 30 July you would not be required to work.
…”
The Applicant submitted that as he was unable to cope with the overall stress of being faced with the decision to continue or end his employment by 1 July 2024, he rescheduled his doctors’ appointment from 29 June 2024 to the same day. The Doctor then provided him with a medical certificate dated the same day noting him unfit from 29 June to 7 July 2024.
Under cross-examination, the Applicant noted that due to the stress, Ms Skinner from the Respondent had recommended he consider taking personal leave and that this informed his decision to reschedule his medical appointment and take personal leave.
On 30 June 2024, the Applicant emailed the medical certificate to Ms Skinner and asked her to communicate his leave to the appropriate people.
On 5 July 2024, the Applicant sent a further email requesting further information from the Respondent regarding the role that had been offered as potential redeployment.
On 10 July 2024, Ms Skinner emailed the Applicant asking if he wanted to speak about his employment while on leave, noting that such discussions are usually delayed until a return to work.
On 11 July 2024 the Applicant instructed his legal representative to write to JLL confirming acceptance of their purported repudiation of his employment contract. Under cross-examination, the Applicant confirmed that this was not a resignation of his employment.
Under cross-examination, the Applicant agreed that by 15 July 2024 he had determined to take a role with CBRE commencing on or after 25 July 2024.
Submissions
The Applicant submitted that the employment ended at JLL’s initiative as it repudiated the contract of employment as per section 386(1)(a) of the Act, or in the alternative that the Applicant was forced to resign within the meaning of section 386(1)(b) of the Act.
Repudiation of contract
The Applicant submitted that the Respondent repudiated the Applicant’s contract of employment in circumstances where JLL could no longer employ him in the role pursuant to the terms in the letter of offer.
The term “role” was defined in the contract as ‘Senior Centre Manager appointed to the Wintergarden Shopping Centre located in Brisbane’s Queen Street Mall.’ The Applicant submitted that the ordinary and plain meaning of the term “role” should be taken to mean the ‘Senior Centre Manager, PAM National – ISPT.’
The Applicant submitted that the ability for JLL to vary his duties and responsibilities at any time did not give JLL the ability to unilaterally and arbitrarily change his role described in the letter of offer. The Applicant gave oral evidence that he believed the role offered within Brisbane was not a real role, but consisted of assorted tasks that would ordinarily be performed by Ms Redmond.
The Applicant submits that great weight should be put on the lack of a position description and the lack of specifics of the proposed position, as well as the Respondent’s failure to respond to enquiries regarding the proposed position and to call relevant witnesses, to suggest that the Respondent was not genuinely intending to redeploy the Applicant.
JLL submitted that the Applicant chose to end his employment immediately and without providing notice on 11 July 2024. JLL went on to confirm that it had at all material times made clear to the Applicant that he was a valued employee whose skillset was still required and for whom a role would be found and that it did find an alternative role for the Applicant by 28 June 2024.
JLL submitted that the Respondent’s conduct in attempting to retain the Applicant by offering him several roles and responding to concerns the Applicant had raised by attempting to generate a role which answered the concerns he had raised was indicative of an employer acting appropriately to retain a senior employee, and did not disadvantage the Applicant in any way. JLL denies that this conduct could have constituted a repudiation of contract, as it indicates a clear and consistent intention to retain the Applicant.
The Applicant relied upon several cases to establish that the Respondent’s repudiation of the contract was sufficient to sever the employment relationship at their initiative. These cases together provide the following summary of principles:
·It is necessary to identify the term or terms of the contract said to exist and which it is said has or have been breached;[5]
·An assessment of the gravity of the alleged breach can only be made once the terms of the contract of employment said to have been breached are known;[6]
·The question is whether, objectively, the employer’s conduct constituted repudiation of the contract. This is to be determined at the time the employee elected to treat the defendant’s conduct as repudiation;[7]
·It is unnecessary to show a subjective intention to repudiate;[8]
·The test is whether the conduct of one party is such as to convey to a reasonable person, in the situation of the other party, renunciation either of the contract as a whole or of a fundamental obligation under it;[9]
·Repudiation by the employer does not automatically bring the contract of employment to an end but gives the employee the option to continue their employment or accept the repudiation as the end of the contract;[10]
·Repudiation may be evidenced by a single act or by an accumulation of conduct in circumstances where no individual act on its own constitutes a repudiation.[11]
The cases also provided the following potential examples of what repudiation might be:
·Repudiation may occur where there is a serious non-consensual intrusion on the nature of the employee's status and responsibilities in a way which is not permitted by the contract or if an employer seeks to bring about a change in the employee's duties or place of work which is outside the scope of the contract of employment;[12]
·If an employee did not agree to such change(s), which if agreed would amount to a variation of the contract, they may claim to have been constructively dismissed;[13]
·“Repudiation” may refer to conduct which evinces an unwillingness or an inability to render substantial performance of the contract. This is sometimes described as conduct of a party which evinces an intention no longer to be bound by the contract or to fulfil it only in a manner substantially inconsistent with the party's obligations;[14]
·Repudiation may exist where an employer reduces the wages of an employee without the employee's consent.[15]
The Applicant further referred to the case of Dover-Ray v Real Insurance Pty Ltd[16] (Dover-Ray) where a Full Bench of the Commission found that a separation offer with a clear timeframe would cause a reasonable person to conclude that the Respondent had concluded that the employment was at an end:
“[24] Viewed in their totality, the actions of the respondent evinced an unwillingness to continue the employment of the appellant amounting to a repudiation of her contract of employment, which repudiation was accepted by the appellant when she filed her application for relief against termination of employment. …
[25] The respondent's letter of 21 May 2009 offered a mutually agreed separation by way of resignation and specified a clear timeframe within which that offer was open for acceptance. A reasonable person in the position of the appellant would have concluded that the respondent had decided that the appellant's employment should terminate and the only issue was whether this would be by way of resignation or dismissal …”.[17]
It must be noted that in contrast to this matter, the Applicant in the Dover-Ray matter was offered a resignation agreement or dismissal due to serious misconduct. The Applicant in this matter had originally been in redundancy discussions but was later offered a separation agreement or an alternative position. The Applicant submitted that JLL’s conduct, when viewed in totality and in the context of its internal email stating it wanted the Applicant to resign, demonstrated that a reasonable person would have concluded that JLL had decided that the Applicant’s employment should terminate.
JLL contended that the Applicant took personal leave from 28 June 2024 continuing after 30 June 2024, which showed he believed the Respondent had not repudiated the contract. JLL notes that the Applicant communicated regarding redeployment on 5 July 2024, after the alleged repudiation occurred, though he did not respond to an email from Ms Skinner dated 10 July 2024.
JLL submitted that the Applicant now works for CBRE in the same role and at the same property where he first worked for JLL, the prospect of which Mr Fennell had alluded to through the process. JLL notes that the Applicant did not inform them that he was commencing work with CBRE, and submitted that the Applicant had determined to seek a role with CBRE and had acted to seek entitlements from JLL while also securing the role with CBRE.
Under cross-examination, the Applicant gave evidence that he represented to Mr Fennell of the Respondent that he did not know whether CBRE had filled the position of centre manager, which he knew to be untrue. The Applicant was aware that he was still being considered for the position of centre manager.
JLL referred to the case of Spotless Services Australia t/as Alliance Catering,[18] comparing the refusal to meaningfully cooperate with the employer in considering options for redeployment. JLL submits that the roles they offered were acceptable employment even if not accepted by the Applicant, and that granting of leave and engagement with the employee is irreconcilable with allegations of termination of employment.[19]
JLL also notes that under s.119 of the Act there are no entitlements to redundancy until there is notice of termination of employment. JLL asserts the Applicant was further not entitled to redundancy.
In summary, JLL submitted that the Applicant has not been dismissed as:
·JLL sought to continue the Applicant’s employment and had no intention of terminating his employment;
·There were ongoing opportunities available;
·The contract allowed for variation of work location and duties;
·Continuation of employment did not involve any loss of renumeration, need to relocate or travel further and was in accordance with the contract;
·Regarding the negotiated exit option, this was offered as the Applicant appeared to want to end his employment with JLL;
·Nothing in the conduct of the relevant staff could be accepted as involving discrimination or renouncement of contract.
Forced Resignation
In the alternative and in addition, the Applicant submitted that JLL’s actions show a subjective intention to engage in a course of conduct that gave the Applicant no option but to resign. The Applicant submitted that the principal contributing factors which led to the ending of the employment relationship were:
·the inability of JLL to continue to employ the Applicant in a role he was employed to perform;
·the failure of JLL to meaningfully engage with the Applicant regarding appropriate or comparable roles to which the Applicant could be deployed;
·the obvious nature in which JLL was “buying time” in the anticipation that CBRE would, of its own volition, offer the Applicant employment;
·the allegations made at the 28 June meeting wherein Ms Skinner alleged that by reason of the “the response received from [the Applicant] throughout the past 3.5 months and the lack of partnership to work a solution for [the Applicant’s] own future, plus comments made by [the Applicant] about client partnerships” raised “serious concerns about any on-going relationship”;
·the Negotiated Exit Letter advising that JLL had commenced consultation with the Applicant of their intention to negotiate an exit of employment contract.
JLL submitted that the Applicant was not forced to resign as the Respondent, as at 28 June 2024, had provided an alternative role for the Applicant, which was based at JLL’s Brisbane head office, only 350 metres away from the Applicant’s current place of employment. JLL contended that this role was consistent with the Applicant’s job band and level as provided for in the contract and explained that it may be an interim role pending other opportunities.
JLL submitted that if the Applicant did not wish to accept the Director role, a discussion could have taken place about ending his employment on terms suitable to both parties without being a redundancy and without post-employment constraints. It is not unusual for redeployment discussions to take place over a range of months or with a transitional role. The Respondent’s conduct could not be seen as giving the Applicant no option but to resign.
JLL submitted that the Applicant could not have been forced to resign as the Applicant did not resign. JLL submits that the Applicant’s purported acceptance of the Respondent repudiating the contract should not be read as a resignation.
Relevant Legislation
Section 386 reads as follows:
“386 Meaning of dismissed
A person has been dismissed if:
(a)the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b)the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.”
Consideration
Repudiation of contract
For there to be a dismissal on the basis of repudiation of a contract it would need to be determined that there was a dismissal within the meaning of section 386(1)(a). Applicant is alleging that JLL repudiated the contract by not satisfactorily arranging redeployment after the ending of the JLL’s contract with ISPT and JLL no longer requiring his role to be performed at Wintergarden from 30 June 2024. There is no dispute the role that he was performing was no longer required by the Respondent as of 1 July 2024.
The Applicant referred particularly in closing to the internal email of Mr Fennell of 20 May sent to other JLL staff that included the words “...I’m not going to pay a redundancy to anyone who wants to stay on the asset and get a job the following day with CBRE on the same terms...”.
This argument is in essence that JLL was never genuine about seeking to redeploy the Applicant, and was in truth just seeking to wait him out so that he would have to resign and it could avoid paying redundancy pay and pro rata long service leave.
The Applicant confirmed in his evidence that he gave instructions to his lawyers on the morning of 11 July 2024 to send JLL the correspondence asserting it had repudiated his employment contract. The letter was sent at 3.31pm that afternoon. At 3.49pm on the same day the Applicant texted Ms Brown from CBRE.
The Applicant was on a period of personal leave at the time and had provided medical certificates to JLL to support his being on personal leave.
The Applicant confirmed his new role with CBRE commenced on 26 August 2024 and is essentially the same role as the role he performed for JLL, approximately 6 weeks after his employment ended with JLL. He signed his new employment contract with CBRE on 15 August 2024. The Applicant had been in discussions with Jen Brown, the CBRE’s Head of the ISPT portfolio, who was responsible for the transition of the contract from JLL to the CBRE from April 2024. In a text message to Ms Brown on 15 July 2024 he stated “Still keeping communications on the quiet…”
The Applicant agreed in his oral evidence that he knew an opportunity would be available for him at CBRE before 11 July 2024 however also said “..nothing was certain”. The Applicant contacted CBRE through an email to Ward Young on 12 April 2024 advising he was keen to discuss an opportunity to move across to CBRE which read as follows:
“David Smith: As discussed, I am keen to discuss an opportunity to move across and remain with my team (& the development project). The strategy on how to achieve this transfer is yet to be decided. I do have contractual clauses in my work agreement, but there are also circumstances that may negate being able to enforce such clauses. Happy to discuss this further as I do have 9 years’ service this year as well as 17 weeks personal leave, so I am seeking options where I am not financially penalised to keep the same role.”
The Applicant agreed in his oral evidence his strategy was to secure the same ongoing role with CBRE as well as a redundancy payment and his pro rata long service leave.
On 18 April 2024, the Applicant was advised by the Respondents its primary focus was on redeploying him. On 19 April 2024, the Applicant emailed JLL requesting a date that a redundancy could be agreed when he was in discussions with CBRE. The Applicant agreed that from 1 May 2024 Ms Brown was working with ISTP about the Applicant working for CBRE.
The Applicant was aware from 13 May 2024 centre managers could request from JLL to waive non-compete clauses to CBRE. He agreed he did not want JLL to know he was in discussions with CBRE as he was concerned about losing his long service leave. It is clear at this time he was telling CBRE he did not want an offer of employment until his entitlements had been paid out by JLL. Ms Brown from CBRE agreed not to let anyone know he is communicating with CBRE.
The Applicant agreed with the proposition that, from 16 May 2024, Ms Brown of CBRE had assured him in writing of a position as centre manager of the Wintergarten at a time of his choosing.
The Applicant’s credibility as a witness was undermined somewhat by his having stated to Ms Skinner and Mr Fennell on 28 May, 13 June and 19 June 2024 that CBRE had not made an offer to him despite having received the email from Ms Brown of 16 May 2024. He denied having heard from CBRE at all which was clearly untrue. His secretly recording a series of meetings with JLL’s representatives without advising them reflects poorly on his credibility. JLL made clear to the Applicant that if he received an offer from CBRE they would release him from any restraints.
On 28 June 2024, the Applicant was advised again that JLL intended to redeploy him into another role as at 1 July 2024 and tabled a proposed role, but also raised with him that he appeared to be disgruntled. The Applicant agreed in his oral evidence that he had lost trust in JLL by this point. He agreed at this meeting he was offered two options, ongoing employment or to negotiate an exit package.
The Applicant agreed JLL offered to pay his long service leave, for him to serve out one month and they would pay the balance of his notice period and an ex-gratia amount of eight weeks pay. The Applicant said it was not a redundancy and had errors in it.
The Applicant’s 5 July 2024 email to Ms Skinner raised nine questions concerning the proposed role offered by JLL and on the following Wednesday, 10 July 2024, Ms Skinner asked the Applicant by email whether he gave permission for JLL to continue the conversation with him while on medical leave. The Applicant did not respond to this request, and instead on 11 July 2024 instructed his lawyers to send the letter advising that the Applicant accepted the JLL’s repudiation of the employment contract.
Importantly the Applicant’s contract included a term that JLL was required to provide three months’ notice, and the contract also entitled JLL to be able to direct the Applicant to perform other duties. Under the contract the Applicant is required to give three months’ notice absent JLL giving notice. The three months’ notice period had not been activated at the time the Applicant claimed the contract had been frustrated, and the notice period was also an obstacle in the way of the Applicant commencing employment with CBRE, just as the restraints in the contract were also an obstacle.
It is commonly the case that an employment relationship does not necessarily terminate at the same time an employee’s role is no longer required. Redundancy pay is not payable until an employee’s employment is terminated. The Applicant continued to engage with JLL, notably in the email on 5 July 2024 requesting further detail on the offered redeployment, suggesting that the Applicant did not believe JLL had frustrated his contract of employment at that point. He failed to respond to Ms Skinner’s request for permission to engage with him whilst on personal leave.
The Applicant suggests that the offers of redeployment received before the end of his substantive role on 30 June 2024 was not in compliance with JLL’s redeployment policy and this constituted so grave a breach of his contract as to entirely repudiate his employment, and his role was an essential term of the contract. The contract however also provided that he could be relocated either temporarily or permanently and could be assigned other duties. The facts are that the parties had been engaging in discussions up to 11 July 2024. I do not agree that by offering alternative roles with different duties and responsibilities JLL was “unilaterally and arbitrarily changing the Applicant’s job role”.
The Applicant also suggests that after he had rejected the redeployment opportunities, offering him an exit package was inappropriate and suggests JLL was unwilling to continue employment. The evidence demonstrates that because the Applicant did not tell JLL he had been engaging with CBRE there was a basis for JLL to believe that he was genuinely open to further discussions about an alternative role with it, and hence continued discussions about that topic were still worthwhile from the JLL’s perspective. Further, it otherwise was continuing to meet its obligations under the contract of employment.
There is a distinction between an employee’s role, and their employment. The role at Wintergarden finished on 30 June 2024, however his employment continued in accordance with the contract. The Applicant took personal leave and continued to be paid and continued to engage with JLL about the prospects of alternative roles.
The Applicant’s case is JLL had no alternative role for him, however on the evidence as at 11 July 2024 the Applicant was on personal leave, and JLL was standing ready to engage with the Applicant about the option of trying to reach agreement on an alternative role and was saying it had plenty of work to do.
Whilst he had not yet received a formal written offer of an employment contract as at 11 July 2024, which was primarily because he made clear he did not want CBRE to make one at that stage, it is reasonably clear it was the Applicant who wanted to end the employment relationship. He knew he would receive an offer from CBRE when he told CBRE he was ready to receive the offer and his former role was being held for him by CBRE. He agreed with the proposition during his evidence that he knew CBRE had not filled the position because he might be coming over to them.
The evidence supports the conclusion that the employment relationship was brought to an end at the initiative of the Applicant because he wanted to pursue employment with CBRE.
The evidence is clear that the Applicant was engaged in direct discussions with CBRE well before the alleged frustration of his employment contract by the Respondent, and had secured a commitment from CBRE that they would offer him his existing role with the Respondent, as an employee of CBRE at a time that suited the Applicant.
The Applicant could not chart the course of accepting this employment and securing the redundancy pay and long service leave successfully if he ended his employment with the Respondent on his own initiative. The Respondent was trying to either reach an agreement with him about a new role into which to be redeployed, or alternatively to negotiate with him agreed mutual terms of separation in order to part ways without the Respondent paying redundancy pay and long service leave when it would not have to if he remained in employment in a different role it was prepared to offer him, or if he resigned.
Whilst the facts point to a conclusion that both the Applicant and Respondent were seeking to manoeuvre the situation into a position that suited their own interests, I have concluded that the Respondent had not repudiated its employment contract with the Applicant as at 11 July 2024, and the Applicant’s conclusion that it had done so was premature as at 11 July 2024.
Forced Resignation
Mr Smith’s own evidence was quite clear that he did not resign, and the reason given in the correspondence of 11 July 2024 was repudiation of the contract of employment.
The Respondent proposed to the Applicant a role on 28 June 2024. I do not accept that the Respondent failed to meaningfully engage with the Applicant about redeployment. The difficulty with the Applicant’s argument that he was forced to resign because the Respondent was “buying time” on the basis that CBRE would employ him, is that he repeatedly asserted to the Respondent that he had not been approached by CBRE and did not have another job to go to. Mr Smith raised a series of questions about the proposed role on 5 July 2024 when he was on personal leave, and Ms Skinner sought his agreement to engage further whilst he was on personal leave. This was the last communication from the Applicant with the Respondent before his solicitors sent the correspondence of 11 July 2024.
I do not accept that the concerns raised by Ms Skinner about the Applicant appearing to not wish to work toward a solution, or concerns about the on-going relationship and introducing the option of a negotiated exit support a conclusion that the Applicant was forced to resign. The evidence supports the conclusion that the Respondent had a good basis to believe that the Applicant was more interested in leaving than remaining with the Respondent after 30 June 2024 and it was reacting to his approach to the situation by raising the option of an agreed exit. It was not put as the only option, and was but one option.
As the Respondent submitted, it is not unusual for redeployment discussions to extend for a period following a role becoming redundant. I have concluded that the Applicant was not forced to resign because of conduct or a course of conduct engaged in by the Respondent, and ended the employment relationship on his own initiative by instructing his solicitors to send the correspondence of 11 July 2024 to the Respondent, and subsequently bringing this application.
Conclusion
Having determined that no dismissal has occurred within the meaning of section 386(1)(a) or (b), the Commission does not have jurisdiction to deal with the application and it is dismissed. An order to this effect will be issued separately and concurrently with this decision.
COMMISSIONER
Appearances:
Mr T Spence, Counsel for the Applicant.
Mr K Brotherson, Counsel for the Respondent.
Hearing details:
2024
Brisbane (by video)
17 September, 29 October 2024
[1] Exhibit 1.
[2] Exhibit 2.
[3] Exhibit 3.
[4] Exhibit 4.
[5] City of Sydney RSL & Community Club Ltd v Balgowan (2018) 273 IR 126, 134 [20].
[6] North v Television Corporation Ltd (1976) 11 ALR 599, 609.
[7] Cameron v Asciano Services Pty Ltd [2011] VSC 36 (‘Asciano’), [44].
[8] See for example Whittaker v Unisys Australia Pty Ltd (2010) 26 VR 668; 192 IR 311 (‘Whittaker’), [32]-[41] and Fishlock v The Campaign Palace Pty Ltd (2013) 234 IR 1 (‘Fishlock’), [126].
[9] Fishlock, [126]; Asciano, [45]; Earney v Australian Property Investment Strategic Pty Ltd [2010] VSC 621, [77]; Whittaker, [32]; Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd (2007) 233 CLR 115, [44].
[10] See Automatic Fire Sprinklers Pty Ltd v Watson (1946) 72 CLR 435, 450-453 & 461-46; City of Sydney RSL & Community Club Limited v Balgowan[2018] FWCFB 5, [19].
[11] Fishlock, [126]; Asciano, [45]; Earney v Australian Property Investment Strategic Pty Ltd [2010] VSC 621, [77]; Whittaker, [35].
[12] Kurucuk v Mining One Pty Ltd[2018] FWC 6620, [70].
[13] City of Sydney RSL & Community Club Limited v Balgowan[2018] FWCFB 5; see also Koompahtoo Local Aboriginal
Land Council v Sanpine Pty Ltd (2007) 233 CLR 115.
[14] Fishlock, [126]; Asciano, [45]; Earney v Australian Property Investment Strategic Pty Ltd [2010] VSC 621, [77]; Whittaker, [32]; Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd (2007) 233 CLR 115, [44].
[15] See for example Rigby v Ferodo Ltd [1987] IRLR 516; [1988] ICR 29 and Brookton Holdings No V Pty Ltd v Kara Kar Holdings Pty Ltd (1994) 57 IR 288; City of Sydney RSL & Community Club Ltd v Balgowan (2018) 273 IR 126, [18]-[20].
[16] (2010) 194 IR 22.
[17] Ibid 24 & 25.
[18] [2016] FWC 4505 (‘Spotless’).
[19] Spotless [70].
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