Nair v Queensland University of Technology
[2019] FCCA 1709
•19 June 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| NAIR v QUEENSLAND UNIVERSITY OF TECHNOLOGY | [2019] FCCA 1709 |
| Catchwords: INDUSTRIAL LAW – Application for unpaid redundancy entitlements – imposition of pecuniary penalties – whether applicant’s position redundant – where applicant’s duties changed over time – application dismissed. |
| Legislation: Acts Interpretation Act 1901 (Cth), s.28A Fair Work Act 2009, ss.44, 50, 117, 119, 323, 324, 536 |
| Cases cited: Amcor Limited v Construction, Forestry, Mining and Energy Union & Ors (2005) CLR 241 |
| Applicant: | CHENICHERI MEERA NAIR |
| Respondent: | QUEENSLAND UNIVERSITY OF TECHNOLOGY |
| File Number: | BRG 871 of 2016 |
| Judgment of: | Judge Jarrett |
| Hearing dates: | 6, 7 and 8 December 2017 |
| Date of Last Submission: | 8 December 2017 |
| Delivered at: | Brisbane |
| Delivered on: | 19 June 2019 |
REPRESENTATION
| Counsel for the Applicant: | Ms Moody |
| Solicitors for the Applicant: | Hall Payne Lawyers |
| Counsel for the Respondent: | Mr Williams |
| Solicitors for the Respondent: | Minter Ellison |
ORDERS
The application filed 22 September 2016 be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 871 of 2016
| CHENICHERI MEERA NAIR |
Applicant
And
| QUEENSLAND UNIVERSITY OF TECHNOLOGY |
Respondent
REASONS FOR JUDGMENT
In these proceedings, the applicant claims against her former employer, Queensland University of Technology for unpaid redundancy entitlements, pay in lieu of notice and penalties for various breaches of a particular certified agreement and certain provisions of the Fair Work Act 2009 (Cth) arising out of the termination of her employment.
The significant issue between the parties is whether QUT, by updating the applicant’s position description and requiring the applicant to focus on different work tasks, made her position of Manager, International Development redundant. There are subsidiary issues about whether the respondent:
a)has failed to pay her entitlements due to her upon the conclusion of her employment;
b)made an unauthorised deduction from her final pay; and
c)met its obligation to furnish her with a pay slip within the timeframe required by the Act.
For the reasons that follow, I am satisfied that:
a)the applicant’s position with the respondent was not made redundant as she claims;
b)the respondent has not failed to pay her entitlements due to her at the conclusion of her employment;
c)the respondent did not make an unauthorised deduction from her final pay; and
d)the respondent met its obligation to furnish her with a pay slip within the timeframe required by the Act.
The facts – those agreed and found
The following facts appear from those agreed between the parties and those which emerge from the evidence given by the parties and their witnesses.
The applicant was employed by QUT from on or around 19 June, 2000 until:
a)on the applicant’s pleadings – 30 August, 2016; or
b)on QUT’s pleadings – 20 October, 2016.
She was employed in the following roles:
a)from 19 June, 2000 until approximately November, 2006 – Faculty International Projects Coordinator;
b)from approximately December, 2006 until 2009 – Manager, International Business Development;
c)from 2009 until 2013 – Manager, International Higher Degrees Research; and
d)from 2013 until August/October, 2016 – Manager, International Development.
The most recent written contract of employment that the applicant was able to locate was a written contract of employment she was given by QUT on or around 23 October, 2006 for the role of Manager, International Business Development. The parties agree that that contract of employment contains no provision which specifies a period of notice for the termination of the employment relationship.
In January, 2013 the applicant was appointed by QUT to the permanent full-time position of Manager, International Development. This is the position from which the applicant says she was made redundant in 2016. The parties agree that immediately prior to the cessation of her employment (that is, irrespective of whether the termination date alleged by the applicant or QUT is adopted), the Queensland University of Technology Enterprise Agreement (Professional Staff) 2014 — 2017 applied to the applicant’s employment.
From January, 2013 to September, 2015 the applicant had the following primary duties in her role of Manager, International Development:
a)the development of QUT International’s business with particular focus upon certain aspects of that business, namely:
i)the recruitment of international Masters and PhD students from Indonesia, Vietnam, Thailand and Sri Lanka through government sponsorship;
ii)the recruitment of Australian Awards Scholarship students;
b)liaison with the Office of Research and the Student Business Services (Admissions Office) for Scholarships; and
c)negotiating agreements with government partners (both new and replacement).
The applicant says that, beginning in September, 2015 her then manager, Ms Tze Ay Chuah (Executive Director, QUT International), started making changes to her duties. For example, she claims that Ms Chuah introduced a new requirement that the applicant undertake high level data analysis duties for which the applicant was neither qualified nor experienced. The applicant contends that, over time, the changes to her duties were substantial. She contends that between September, 2015 and August, 2016 her duties were changed so substantially that, by mid-2016, her position had disappeared in all but title. She submits that the effect of this was that her position of Manager, International Development was made redundant by QUT.
Accordingly, identification of the changes, if any, that were wrought to the applicant’s duties from September, 2015 to mid-2016 is central to the applicant’s case. Before turning to that matter, however, it is necessary to consider the evolution of the applicant’s employment with QUT over time.
In 2006 the applicant was appointed to the role of Manager, International Business Development by Mr Geoffrey Edmondson. Mr Edmondson gave evidence in these proceedings.
Both the applicant and Mr Edmondson gave evidence that she reported directly to Mr Edmondson from December, 2006 to 2009. During that period the applicant was responsible for recruiting international students across all of the faculties and schools of QUT. That included both undergraduate and postgraduate candidates.
According to Mr Edmondson, between 2006 and 2009 the applicant:
a)assisted him to identify new marketing and recruitment opportunities in other countries, including in new and existing markets;
b)dealt with international education agents;
c)dealt with partner and potential partner universities abroad;
d)negotiated commercial agreements with various QUT stakeholders in relation to scholarships and sponsorships for international students;
e)managed relationships with international scholarship and sponsorship bodies, both private and government; and
f)undertook other activities aimed at building QUT’s international profile in order to grow QUT’s share of the international student market.
The applicant’s role involved travel. She was required to travel overseas so as to engage with overseas organisations, including universities and foreign governments. However, the evidence demonstrates that, over time and commencing well before 2015, the demand for the applicant to travel had reduced. According to both the evidence of Mr Edmondson and the applicant, in 2006 QUT International established what Mr Edmondson and the applicant described as “Regional Teams” with each team being responsible for various geographical areas around the world. Once those teams were established, the recruitment opportunities found by the applicant and Mr Edmondson would be passed on to the Regional Teams for “further development and maintenance”. Whilst the applicant’s need for travel to identify opportunities continued, the need for travel to pursue those opportunities ebbed away and was taken up by the Regional Teams. Accordingly, her need for travel reduced over time.
According to Mr Edmondson’s evidence, the applicant’s role did not involve “data analysis”. However, Mr Edmondson’s own evidence was that the applicant needed to engage in some data analysis to perform her duties. His evidence in cross-examination revealed a difference in emphasis. When speaking of “data analysis”, Mr Edmondson explained that he was speaking of in-depth forensic analysis, modelling and manipulation of data. Whilst the applicant reported to him, he said that she was not required to perform that type of work. He did, however, concede that it was necessary for her to use various data to assist her to inform her decision-making about the opportunities that she could identify in her employment for QUT. As I say, it seemed to me to be a question of emphasis and degree.
In 2009 there was a significant change to the applicant’s role. According to Mr Edmondson’s evidence there was a restructure of QUT International that was informed by a change in policy direction. Instead of reporting to Mr Edmondson, the applicant reported to the Executive Director of QUT International. At the same time, most of her work was reallocated to the Regional Teams. The applicant retained responsibility for international business development for higher degree research relating to the Masters by Research and PhD programs only. International business development for other degrees passed to the Regional Teams. According to Mr Edmondson the applicant’s focus came to rest exclusively on the recruitment of international students for Masters by Research and PhD programs in Indonesia, Vietnam, Thailand and Sri Lanka.
Both the applicant and Mr Edmondson in their evidence characterise the changes that were made to the applicant’s role in 2009 as changes in “focus”. Both maintain that the primary purpose of her role – the recruitment of international students for QUT – remained. However, Mr Edmondson’s evidence demonstrated that the applicant’s role, carried out in conjunction with him to some extent, was to identify opportunities for recruitment and pass them on to the regional teams for “development and maintenance”. That is to say, the focus seemed to be upon the identification of recruitment opportunities rather than directly recruiting individual students. Neither Mr Edmondson nor the applicant suggested that this change in focus of her work, either with or without the reduction in travel that had developed over time, meant that the applicant’s position with QUT had become redundant or no longer necessary.
Somewhat inconsistently with Mr Edmondson’s evidence, the applicant’s evidence is that from July, 2009 and after the restructure, her core duties were:
a)liaison with the Office of Research and the Student Business Services (Admissions Office) for Scholarships;
b)the recruitment of international higher degree research students (Masters by Research and PhD) from Indonesia, Vietnam, Thailand and Sri Lanka through sponsorships and scholarships; and
c)negotiating agreements with government partners (both new and replacement).
The applicant’s evidence is that these three “core functions” remained core duties for her until her employment came to an end in 2016.
When the applicant was employed in the position of Manager, International Development from 1 January, 2013 QUT issued to her a new position description for her role. She swears that in her renamed role, her duties did not change. But I am satisfied that they did. For example, she acquired responsibility for the Australia Awards which the applicant explained in her evidence are an initiative of the Australian Government by which it funds (wholly or partly) international students from target countries. The duty statement that the applicant says was provided to her in respect of this position provides:
Purpose of Position
This position is responsible for managing the development and growth of QUT’s international AusAID market and International HDR development initiatives. The position will work closely with the Director, International and Marketing Services QUT International, key University staff and the regional promotional teams in developing, implementing and managing relevant strategic development plans for priority markets, and reviewing and evaluating progress, such as identifying target markets, with a view to increasing student enrolments for QUT’s International AusAID and International HDR students.
Between 2014 and July, 2015 the applicant reported to the Director for International Marketing and then from July, 2015 to May, 2016, she reported to the Director of Mobility and Marketing Services/Director, QUT – Global. From May, 2016 she reported to Ms Tze-Ay Chuah, Executive Director, QUT International. But as the uncontroversial evidence shows, from about June, 2015 Ms Nair was supervised by, or reported to Ms Chuah even though she did not occupy the position of her immediate supervisor.
The applicant gave evidence that in 2014 she “acquired” responsibility for all scholarships and sponsorships – described in the evidence as essentially the Australia Awards. That encompassed undergraduate and postgraduate scholarships and sponsorships across all regions although, according to the applicant’s evidence because of some conflict arising out of an overlap with the duties of the Regional Teams, she did not fully take up her broader duties. But the devolution to her of that work was plainly within the position description given to her in 2013.
In 2015, the funding that was available to the Australia Awards program reduced significantly. That meant that the number of scholars available decreased. The countries of Fiji and Timor were also removed from the applicant’s area of responsibility for the Australia Awards and that meant that she was no longer required to travel to those countries. The requirement for travel therefore reduced.
On 19 June, 2015 a meeting took place between Tze-Ay Chuah, Executive Director, QUT International and the applicant. Both the applicant and Ms Chuah gave evidence in these proceedings. Before proceeding further, it is necessary to make some observations about their evidence.
The two main witnesses in this case were the applicant and Ms Chuah for QUT. Neither were impressive witnesses. The written evidence of both witnesses was difficult because there were a great many self-serving statements and opinions that were not supported by any evidence. Much of their written evidence was argumentative and amounted to little more than submission. The applicant’s oral evidence was frequently unresponsive to the questions asked of her. I gave her a warning about this during the trial (T70, lines 25-29).
Whilst this is a case that largely falls to be decided by reference to documents, I think, it is nonetheless important to record the impressions formed about the applicant, principally from her written evidence and as she attempted to expand upon that in cross-examination, my notes of the applicant’s evidence refreshed of the transcript of the proceedings. More often than not, past events were re-interpreted through an emotive and highly subjective lens. In a quest to emphasise the skills she allegedly lacked (for example, in data analysis) she minimised the skills she in fact possessed and had utilised in her work with QUT.
There were also difficulties with Ms Chuah’s evidence. Although I consider that her evidence is far less likely to be affected by emotional distortion than that of the applicant, her evidence in cross-examination revealed that her denials of various matters put to her amounted to little more than an inability to recall specific matters.
Returning to the meeting of 19 June, 2015 the parties agree that the applicant and Ms Chuah had a discussion about the duties that the applicant would be required to perform in the future. According to the applicant, Ms Chuah said that the applicant’s position description would remain the same but that her duties would be “tweaked”. Because the Australia Awards were dwindling, the applicant said that Ms Chuah told her that she needed her to give her more “intelligence”. The applicant needed to take on more of a “data analysis” role. According to the applicant Ms Chuah said that her new duties would require her to focus:
on high level data analysis. I need you to tell me where we should be developing our markets, and where our students are coming from. I need you to find out what the trends are, and where the opportunities are, and to report this information so that the whole office will be able to use the information to do the work.
The applicant says that she responded by saying “I don’t have the background for this. I don’t have a head for data analysis”. Further she says that when she asked if she would be required to “do any HDR or the Australia Awards” Ms Chuah replied, “No, you won’t”.
According to Ms Chuah, the conversation was not as reported by the applicant, but there are some matters of common ground. According to Ms Chuah’s evidence she told her that there would be some refocus on some aspects of the applicant’s position because of the “defunding of the Australia Awards and a reduction in HDR sponsorships”. She agrees that she said words to the effect that other areas of international development needed to be identified and pursued through the evaluation of market intelligence and enrolment data to identify relevant foreign agencies and institutions. Ms Chuah says that she explained that the decisions around targets and initiatives needed to be supported by data and market intelligence. She denies that she says to Ms Nair that she needed her to take on more of a data analysis role or that her new duties would require her to focus on high level data analysis. I accept her denial about that, but it seems to me that nothing turns on this difference between the applicant and Ms Chuah. Ms Chuah agrees that the applicant said that she was “not good at data”. What is clear from the evidence of both is that:
a)they talked about the significance of the Australia Awards diminishing because of a lack of ongoing funding to support that line of recruitment; and
b)focus was to be directed to the identification of new targets and initiatives which needed to be supported by data and market intelligence – in other words “data analysis” of some description.
But what Ms Chuah was asking Ms Nair to do was squarely within her position description as it then existed. Even on Ms Nair’s own evidence, all Ms Chuah was asking her to do was “work closely with the Director, International and Marketing Services QUT International, key University staff and the regional promotional teams in developing, implementing and managing relevant strategic development plans for priority markets, and reviewing and evaluating progress, such as identifying target markets…”.
The applicant and Ms Chuah agree that there was also discussion about travel and whether travel would be required in the future. They also talked about budget.
The applicant’s case is that the change in focus that was foreshadowed by Ms Chuah in this meeting was a radical change in direction for her position and job description. But it was not. The job description provided to the applicant in 2013 specified the duties that she would be required to undertake in her role. Although they are lengthy, those duties are as follows (my emphasis):
The HEW8 range of duties include:
·Provide expert advice to Regional teams in identifying, developing and managing complex international Development Aid and International HDR development opportunities in current and emerging markets per QUT’s engagement and recruitment plan
·Oversee, support and advise on relationship issues and act as the primary point of contact for International AusAID activities
·Prepare strategic documents such as intelligence reports, environmental scans, business cases, submission and project proposals as required
·Support regional teams in strengthening strategic partnerships with AusAID managing contractors, AusAID posts, AusAID Canberra Office, international government and scholarship agencies and institutions
·Prepare strategic development plans within the context of overall regional team plans and in close consultation with Regional Managers, for developing markets in various regions and fostering various opportunities
·Support Regional Teams in managing the effectiveness of new and existing institutional agreements by expanding the range of partnership activities with a focus on International HDR recruitment in consultation with Research and Commercialisation, International Student Services, faculties and with institutional counterparts
·Assume responsibility for liaising with designated faculties/institutes on the identification, promotion and evaluation of International Development Aid and International HDR opportunities in particular countries/markets
·Assist in identifying and pursuing new International Aid capacity building and international research training funding opportunities
·Develop and implement relevant team policies and procedures relating to International Development Aid and International HDR activities in conjunction with the Director, International and Marketing Services QUT International
·Provide advice to the Director, International and Marketing Services, QUT International on proposed International development Aid and International HDR financial expenditure as required
·Travel to interstate and overseas destinations (where required) in relation to identifying, developing and fostering International development Aid and International HDR business opportunities
·Represent QUT International on internal international education fora, such as faculty international committees and regional reference groups, where required
·Comply with equity, health and safety policies, procedures, hazard reporting and safe work practices
The additional HEW9 range of duties include:
·Engage in high-level liaison and negotiations with Australian and overseas government agencies, academic and business partners, Executive Deans and faculty academic and professional staff to develop objectives and agreements for International Development Aid and International HDR activities
·Provide strategic direction, guidance and expert advice to Regional Teams and Faculties for pursuing proposed International Development Aid and International HDR opportunities in new and established markets
·With the support of the Division of Research and Commercialisation, manage and coordinate promotional initiatives to enhance QUT’s research positioning as a destination of choice for quality international HDR students
·Critically analyse and evaluate complex international institutional opportunities and providing leadership to QUT International, faculties and divisions in developing and implementing initiatives to grow International HDR and International Development Aid opportunities for QUT
·Analyse complex market intelligence to develop strategic position papers, proposals and development plans including presenting on QUT’s international strategic proposals to a variety of internal and external stakeholders in the target regions
·Plan, implement and report on QUT’s International Development Aid and International HDR strategic direction and focus in the target region
·Manage effective internal communications between the three regional teams with regard to International Development Aid activities and International HDR initiatives.
It will be appreciated that those duties described in the duty statement include the analysis of data and the provision of reports by the applicant concerning the very matters that Ms Chuah was describing to her in the meeting to which I have just referred. Moreover, the applicant conceded in cross-examination that her HEW9 classification role involved analysis of data and that she had some data analysis skills. Moreover, the ultimate irony in the applicant’s evidence is that she was prepared to represent to future employers in job applications after she left QUT that she had the very skills in data analysis (for example) that she asserted she did not have in the present case (T93 line 35 to T100 line 11).
I am satisfied, and I find, that during the course of the meeting of 19 June, 2015 Ms Chuah was describing to the applicant a change in focus in her duties that were nonetheless within the position that had been established and which she had occupied since 2013. There was a change in the focus of her duties, but her position was still required by QUT. The duties that she was now asked to perform by Ms Chuah were within the job description and her classification under the enterprise agreement as a HEW8 and HEW9.
On 21 June, 2015 the applicant sent an email to Ms Chuah seeking clarification of a number of issues raised during the 19 June meeting. On 29 June, 2015 Ms Chuah replied in broad terms to the applicant’s email. Relevantly, the email said:
As discussed, while there has been a change in the reporting line, your position description has not changed. Having said this, it is important to note that a position description is a working document and will therefore evolve over time.
You have stated that you are not keen on data analysis.
According to your current position description (and we do not need to update the reporting line), it states that this position is responsible for managing the development and growth of QUT’s international AusAID market and international HDR development initiatives.
A number of the duties outlined:
• Prepare strategic documents such as intelligence reports, environment scans, business cases, submission and project proposals as required
• Assist in identifying and pursuing new international aid capacity building and international research training funding opportunities
• Analyse complex market intelligence to develop strategic position papers, …
The amount of data analysis you will have to undertake depends on what we as a team identify are issues (and we have identified some) with the diminishing Australia Awards funding and therefore, the need to explore and investigate other opportunities. Funding now is not just about aid but also other forms. Further, you would be aware that with international aid, regardless of which government, there is more and more competition and schemes will come and go.
Whilst there is mention about ‘international HDR’, we all know that if we are to be successful in seeking sponsorships/funding and from any source, that a suite of options need to be explored, i.e. mobility; advanced standing; coursework; etc. That suite of options will help us achieve international HDR recruitment.
Analysing complex market intelligence to develop papers / submissions is more than data analysis but is a very important element. If you have some concerns about data analysis, perhaps we can discuss development in this area. We can work together on this.
As for budgets, all the teams are aware that we need to scrutinise how we have allocated funding for events. We all need to ask questions on return on investment and budget will need to be re-allocated to meet our needs going forward. That is why we have planning days to review our schedules in an open and transparent manner. The DVC will also monitor our budget allocations.
We need to discuss what the whole of office work plan will be and how individual work plans can support what we need to achieve.
If you still have concerns, please do not hesitate to discuss with me.
In her affidavit filed 5 April, 2017 the applicant says in response to this email and the duties referenced by Ms Chuah from the position description:
197. I agree that my Position Description (as performed by me at the HEW9 level) required me to perform the duties outlined by Tze Ay in her email, including:
(a) “Prepare strategic documents such as intelligence reports, environment scans, business cases, submission and project proposals as required”.
(b) “Assist in identifying and pursuing new International Aid capacity building and international research training funding opportunities”; and
(c) “Analyse complex market intelligence to develop strategic position papers, proposals and development plans, including presenting on QUT’s international strategic proposals to a variety of internal and external stakeholders in the target regions”.
198. These duties had been a part of my role since 2006, and I am proficient in performing the tasks and producing the documents referred to in my Position Description.
199. However, I say that these duties do not, and have never, required me to undertake complex statistical or data analysis tasks (Data Analysis) of the kind which Tze Ay was directing me to undertake, supposedly under the umbrella of my existing Position Description.
These paragraphs highlight part of the difficulty with the applicant’s evidence. Whilst the applicant says that these duties do not and have never required her to undertake complex statistical or data analysis tasks “of the kind which Tze Ay was directing me to undertake”, the applicant gives no specific evidence about those “complex statistical or data analysis tasks” that she was required to undertake by Ms Chuah. Indeed, there is no explanation anywhere about what those terms mean and how it is that the duties she was called on to perform did not fall within the duties set out in her position description. Moreover, on her own evidence her duties since at least 2009 required her to analyse complex market intelligence. It was not explained why that task was not also a complex data analysis task.
According to the applicant’s evidence, in June, July and August, 2015 her duties and role continued as usual. On or around 4 September, 2015 the applicant left Australia for a work trip to Sri Lanka. During this trip, she suffered an injury.
On 13 or 14 September, 2015 the applicant commenced a period of absence from work on approved WorkCover leave. From 1 October to 1 November, 2015 she worked from home for four (4) hours per day, Monday to Friday, as a part of a return to work process under her WorkCover claim. During this time, the applicant was allocated tasks in weekly telephone meetings with Ms Chuah, even though Ms Chuah was not the applicant’s immediate supervisor.
On 2 November, 2015 the applicant returned to work at QUT. For the first week, she worked two days a week (four hours each day). For the second week, the applicant worked three days per week (four hours per day). For the third week, the applicant worked four days per week (four hours per day). For the fifth week, the applicant worked five days per week (four hours per day).
The applicant says that when she returned to work in November, 2015, she was given “project tasks” in support of Ms Chuah’s “whole of office” function. The implication is that the applicant was not permitted to perform her usual role as Manager, International Development.
On 13 November, 2015 Ms Shirley Chung, Director, International Recruitment at QUT sent a group email which included the applicant, enclosing a document described as the draft “2016 Mission Schedule”. The applicant swears that because she was included in the email, she saw this development as demonstrating that it was “still business as usual, and that (hopefully) I could expect to return to my old duties soon.”
On 23 November, 2015 Ms Chung sent another group email which included the applicant. It concerned the “2016 Mission schedule” and followed upon a meeting between those who seem to have been recipients of the email, save for the applicant who says she did not attend the meeting. The applicant sent an email to Ms Chung about the Mission schedule on 1 December, 2015.
During December, 2015 the applicant worked reduced hours increasing to a maximum of four hours per day, five days per week. She returned to full time work without restriction in January, 2016. During December, 2015 she continued to receive “project work” from Ms Chuah, involving weekly face-to-face meetings in place of the previously held weekly teleconference meetings whilst the applicant worked from home. The meetings were usually held in Ms Chuah’s office or in a meeting room and were routinely attended by the applicant, Ms Chuah, Mr Ian McFadden (Director, QUT Global and the applicant’s immediate supervisor) and Ms Shirley Chung (Director, International Recruitment, QUT International). During these meetings, the applicant was assigned weekly project tasks from Ms Chuah and the progress of previously allocated tasks was checked by Ms Chuah (paragraphs 239-242 of affidavit of applicant filed 5 April, 2017). In cross-examination Ms Chuah accepted that she ran these meetings and that Mr McFadden and Ms Chung said very little if at all during the meetings. The purpose of the meetings was for the applicant to report on the progress of any previously assigned tasks and to be assigned new work.
On 16 December, 2015 the applicant attended a performance review meeting with Ms Chuah in the latter’s office. The applicant says that Ms Chuah criticised her performance since September, 2015 but when challenged by the applicant, Ms Chuah was unable to answer the applicant’s challenges. In cross-examination, Ms Chuah accepted the substance of the applicant’s claim that she had been critical of her work.
On 17 December, 2015 Ms Chuah sent an email to the applicant. The applicant replied on the same day and attached a draft of her “Performance Planning Review”.
Between January to May, 2016 Ms Chuah continued to allocate tasks to the applicant in regular weekly meetings. Very quickly the meetings went from being weekly meetings to fortnightly meetings.
On 11 March, 2016 Ms Chuah sent an email to the applicant explaining that she had put her Performance Planning Review on hold and was assessing her position description. The applicant was anxious to finalise her position description and so on 24 March, 2016 the applicant sent an email to Ms Chuah asking about the finalisation of that document.
On 9 May, 2016 Ms Chuah emailed the applicant a new position description for her role which the applicant contends was substantially different from both the then current position description for her role and the duties which the applicant had actually been performing. QUT contends it was an “updated” version of the applicant’s position description. Relevantly, the email from Ms Chuah says:
…There is no title change and the tasks still reflects what was previously in the HEW 9 duties of the previous PD. Given that there has been changes within this office and the duties of others, the revised PD now reflects the current situation as well as the Real World Capabilities.
In addition to the event management aspect as part of our engagement with sponsored students, your PPR needs to reflect our focus in identifying new opportunities that is data driven and supported and the relevant Real World Capabilities
While I have taken the opportunity to change the reporting line to myself directly, we will keep the fortnightly meetings with the other two directors to ensure that we are on track with the identification of new opportunities to support the BluePrint KPI…
The applicant complained to Ms Chuah about the changes to her duties on numerous occasions, to no avail. The applicant also asked Ms Chuah on numerous occasions whether her position of Manager, International Development had been made redundant. Ms Chuah consistently replied that the applicant’s position was not redundant and that the changes she made to the applicant’s role were merely part of the evolution of that role.
On 17 May, 2016 a meeting took place between the applicant and Ms Chuah in the latter’s office to discuss changes to the applicant’s role and the new position description. The next day the applicant sent an email to Ms Chuah raising concerns that her role had changed so much that her position had been made redundant.
On 25 May, 2016 Ms Chuah sent an email to the applicant explaining that the revised position description reflected the changing environment in which they worked. But on 27 May, 2016 the applicant sent an email to Ms Chuah seeking clarification about redundancy. Ms Chuah replied on the same day explaining that there was no redundancy. I have dealt with, later in these reasons, the difference between the 2013 position description and the 2016 position description as explained by the applicant.
On 2 June, 2016 the Australian Services Union sent a letter to Scott Sheppard, Deputy Vice Chancellor, International & Development, Division of International and Development, QUT International, asserting that the applicant’s role had so changed that she should be offered a voluntary redundancy.
On 8 June, 2016 Mr Sheppard replied to the Australian Services Union denying that the applicant’s position had changed significantly. Dissatisfied with Mr Sheppard’s response, by a further letter sent on 16 June, 2016 the Australian Services Union asked him to reconsider his position. On 20 June, 2016 Mr Sheppard responded by email and maintained his position.
On or around 11 or 12 July, 2016 the applicant applied for immediate personal/carer’s leave due to a personal issue and was granted, a mixture of personal or carer’s leave and long service leave from 11 or 12 July to 31 August, 2016.
In August, 2016 the applicant applied to Ms Chuah for, and was granted, an additional period of long service leave commencing on or about 31 August, 2016 and ending on 31 October, 2016. Accordingly, after 30 August, 2016 QUT continued to pay the applicant long service leave.
On 30 August, 2016 the applicant (by her solicitors) wrote to QUT’s solicitors advising that she considered there has been a repudiation of her employment contract and that she has been constructively dismissed. The correspondence purported to accept QUT’s repudiatory breach of her employment contract. The applicant sought confirmation as to when QUT intended to pay all of her outstanding entitlements.
Thereafter followed a series of letters between the solicitors for the applicant and the solicitors for QUT. I have dealt with the detail of that correspondence in detail below.
On 22 September, 2016 the applicant commenced these proceedings.
On 8 November, 2016 QUT paid the applicant the entitlements to which it contends she was entitled that had accrued up to the date identified by QUT as the termination date for the applicant’s employment – 28 October, 2016. QUT did not pay the applicant an amount for redundancy pay, or pay in lieu of notice.
In November, 2016 (the precise date of which is not agreed), QUT sent to the applicant by ordinary post a copy of her final payslip for the pay period ending 11 November, 2016. Under the heading “Earnings and Allowances”, the payslip contained an entry for “long service leave” in an amount of “-2519.80”.
On 16 November, 2016 QUT sent a letter to the applicant confirming the termination of her employment on the basis that she had abandoned her employment. On 22 December, 2016 QUT provided an Employment Separation Certificate to the applicant.
Submissions
The application alleges that QUT:
a)contravened clause 58.7.1 of the Queensland University of Technology Enterprise Agreement (Professional Staff) 2014 — 2017 and therefore s.50 of the Fair Work Act, by failing to pay the applicant redundancy pay that was allegedly payable under the enterprise agreement;
b)contravened s.119 of the Fair Work Act, and therefore s.44 of the Act, by failing to pay the applicant redundancy pay that was allegedly payable under the National Employment Standard;
c)contravened clause 58.2 of the enterprise agreement, and therefore s.50 of the Fair Work Act, by failing to consult with the applicant regarding the alleged redundancy;
d)contravened s.536 of the Fair Work Act by allegedly failing to give the applicant a pay slip within one working day of paying her in relation to the performance of work;
e)contravened s.324 of the Fair Work Act by allegedly deducting an amount of $2,519.80 from the applicant’s final pay; and
f)breached the applicant’s contract of employment by failing to pay the applicant in lieu of an alleged implied term of reasonable notice, which she contends is six months notice.
In summary, QUT contends that:
a)the applicant’s position was not made redundant in accordance with the meaning of “redundancy” in clause 58.1 of the enterprise agreement as the conditions necessary to trigger the operation of the redundancy clause in the agreement were not present;
b)nor was the applicant redundant for the purposes of s.119 of the Fair Work Act because:
i)the termination of the applicant’s employment was not at the initiative of QUT. The applicant, by voluntarily leaving her employment and evincing an intention not to be bound by her employment contract, abandoned her employment; and
ii)QUT still required the applicant’s “job” to be performed.
c)in accordance with clause 18 of the enterprise agreement, the applicant was required to perform any duties nominated by QUT that were consistent with the classification descriptions for her HEW Level 9 position under the enterprise agreement;
d)as there was no redundancy under clause 58.1 of the enterprise agreement, QUT did not breach its consultation obligations in clause 58.2 of the agreement;
e)QUT complied with its obligation under s.536 of the Act by providing the applicant with a copy of her final pay slip by posting it within one working day of payment;
f)QUT did not deduct an amount of $2,519.80 from the applicant’s final pay. The figure of ‘-$2,519.80’ that appears on the applicant’s final pay slip merely reflects an administrative adjustment made to prevent an overpayment from occurring in circumstances where $2,519.80 in respect of long service leave had already been paid to the applicant in the preceding pay run;
g)The applicant was not entitled to reasonable notice of six months under her employment contract as:
i)QUT was not obliged to provide the applicant with notice because termination was at the initiative of the applicant by reason of her conduct in abandoning her employment;
ii)the applicant’s employment contract references the terms of the enterprise agreement;
iii)the terms of the enterprise agreement clearly set out the applicable period of notice or payment in lieu of notice where employment is terminated at the initiative of either QUT or the employee;
iv)s.117 of the Act also provides for a minimum period of notice applicable to the applicant’s employment; and
v)there is no basis to apply a term of reasonable notice because to do so would be unnecessary and inconsistent with a specific term of the applicant’s employment.
Findings about the nature and extent of the changes to the applicant’s duties and role, if any, will necessarily inform the resolution of the competing submissions from each of the parties and most of the applicant’s claims.
The change in the applicant’s duties
The applicant’s case about the change in her position description, her duties and ultimately her role can be summarised by reference to three general matters. First, she says that her role moved from one which involved little data analysis to one which required considerable complex data analysis. Second, her role no longer required travel to the extent that she had travelled in the past, or perhaps at all and there was no budget for travel for her. Third, her role moved from one whereby she was essentially autonomous in that she identified and worked upon her own plans and projects to one where she worked on tasks and plans for the whole of QUTI and that were in part at least given to her by others including Ms Chuah.
The applicant’s evidence about the significance of the changes to her work duties is, on its face, difficult to accept. For example, while the applicant gave evidence that her role before 2015 involved significant travel, her own evidence in cross-examination and that of Mr Edmondson suggested that she might have travelled internationally up to three times per year after the Regional Teams were set up. It is a question of emphasis and degree. The decline in travel was directly connected with a reduction in the finding of the AusAid program and the movement of that work to the regional teams as I have set out above.
Moreover, the applicant’s evidence about the extent to which she performed data analysis was also difficult to accept. Leaving aside that there was no real explanation as to what any of the parties meant when they referred to data analysis, it is apparent that the applicant did perform significant data analysis in her role before the change of position description in 2016.
Perhaps the best evidence of the nature of the changes in the applicant’s role is the document that she prepared in May, 2016 entitled “The primary difference from my current role and the proposed new PD are:”. This document attracts significant probative weight because it was prepared by the applicant at a point in time when the matters dealt with in it were at the forefront of her mind. She created it for her Union so that its officers might raise her concerns with QUT. In that document, she identified these differences between her then current position description and the new position description that she was debating with Ms Chuah:
a)a focus upon “data analysis” rather than it being a “minor part” of her role;
b)a broadening of focus from a management role in respect of the Australia Awards (AusAid) and International Higher Degree Research to all functions of QUT International;
c)a change in focus from pursuing new International Aid capacity building and international research training funding opportunities to identifying all opportunities that “cuts across the teams using data”;
d)a change of focus from policy development for AusAID and HDR activities to a wider responsibility of policy development across teams/office; and
e)organising events and activities to support QUT’s engagement with International cohorts from key university partners and funding agencies.
In respect of the first matter in that list, the applicant recorded that the data analysis she performed under her old PD was “based on data provided where I used to make plans for marketing/recruitment plans”. She argued that the new PD required her to analyse “the data in depth to provide and advise teams regarding trends for all markets”. However, the difference here is one of the breadth of the applicant’s work. The data analysis that she envisaged that would be required of her would not just be for her own purposes, but would be used by others within QUTI. Indeed, in the table in the same comparison document, the applicant recorded that under her current PD she undertook “market intelligence, analysis of complex reports pertinent to” the Australia Awards and Higher Degree research. For all her protestations that she did not and could not undertake complex data analysis, the applicant’s own evidence is that she undertook those very tasks, albeit in respect of the areas identified by her. It was not suggested, nor could it be suggested on the evidence, that the work she was required to perform was not within her 2013 position description.
The enlarged focus upon data analysis was, as the applicant appears to acknowledge, a broadening of the applicant’s already existing role and duties. It was a task that she undertook for the purposes of her then current PD and a task in which she had the skills to engage.
The evidence of both the applicant and Ms Chuah was that there was an ever-diminishing significance attached to the Australia Awards (AusAid). That was due to a decrease in funding for that purpose. However, the identification of growth of QUT’s international recruitment, functions and initiatives remained. That was something that the applicant was skilled at and in which she had considerable experience. This change represented a refocussing of her skills and ability within the general role that the applicant was employed to, and was, performing.
As the applicant’s own document demonstrates (see pages 125 – 129 of annexure MN1 to the applicant’s affidavit filed on 5 April, 2017), the tasks required of her in her new position description were essentially the same as the tasks required of her by her old position description. The changes identified by the applicant are changes in focus or emphasis rather than a change in her duties.
The applicant identified one task that was, according to the 2016 position description, namely the organisation of events and activities with international cohorts from key university partners and funding agencies.
In the same document the applicant identified the duties that she says she was no longer required to perform as of September, 2015 namely:
i)Recruiting sponsored students at international exhibitions fairs for Australia Awards… who does this now? Regional Teams
ii)Development of activities to recruit International HDR and other sponsored students .... who does this now? Regional teams
iii)Negotiating new agreements and the management of current relationships (Australia Awards Management Contractors; HDR sponsors and other sponsoring bodies)… who does this now? Regional teams
iv)Travel and financial accountability for activities described above;
v)Complementing work of regional teams in the priority markets represented working closely with agents and counselling sessions for students ..... who does this now? Regional Teams
vi)Implementation of programs through sponsorship arrangements which includes promotion, development of collateral and liaising ... who does this now? Regional Teams
vii)Working closely with academics to grow interna0tional government and institutional partnerships ..... who does this now? Regional teams
Part of the applicant’s comparison document to which I have just referred includes a table of comments made by the applicant in respect of each of the areas identified by her in which she claims there was a difference between her old position description and her new position description. Save for the addition of new duties relating to the organisation of events, two key themes emerged from that table. The first is what the applicant perceived to be an increase in the amount of data analysis work that she would have to perform. The second is that the work that she needed to perform would not simply be performed to support her own functions but rather to support the international recruitment functions across all of the teams within QUT International.
As I have already indicated, the applicant’s own evidence accepted that her previous role required data analysis. Although there was much self-serving evidence from her that her new role required her to complete more in-depth data analysis, the fact of the matter is that her old role required her to analyse complex data and it was something that she regularly did. She says as much in her own comparison document.
To the extent that the requirement for the applicant to travel reduced to the point where she was not likely to have to travel in the future, that too represents nothing more than an evolution of the duties she was required to perform in her position. The applicant and the respondent’s witnesses agreed that travel was not an entitlement. It was not a requirement of the applicant’s employment contract that QUT would provide her with travel opportunities. Travel was plainly incidental to the duties that she needed to perform to fulfil her role from time to time. The evidence indicates that the requirement for travel decreased over time. There is nothing in the applicant’s suggestion, in my view, that the reduction in travel opportunities to nil indicates that the position then occupied by her was no longer required to be performed by anyone.
The evidence of the applicant and Mr Edmondson demonstrates that over time the significance of government funding for the sponsorship of international students through AusAid or otherwise waxed and waned. It was something with which the applicant has contended in the past. It required from time to time a reorganisation of the functions within her office and changes in policy within QUT International more generally. Mr Edmondson’s evidence and the applicant’s evidence about the introduction of the regional teams attests to that. The applicant’s evidence and Mr Edmondson’s evidence about the change in focus of her work to the Australia Awards and the higher degree research opportunities in 2009 also attests to that.
The enterprise agreement that applied to the applicant’s employment required her to respond flexibly to changes in the required tasks of her role as QUT’s own business and operational needs changed. By clause 18 of the enterprise agreement she was required to perform duties as nominated by the University consistent with the classification description detailed in Schedule 1 to the agreement. Her 2016 position description required her to perform duties nominated by the University that were consistent with her classification. The addition of the event organisation duties does not, in my view, detract from that or mean that the position occupied by the applicant prior to September, 2015 has come to an end or is no longer required by QUT. Apart from that matter, nothing in the tasks required of the applicant in her role, including as modified by the 2016 position description, are inconsistent with the duties specified for her classification in Schedule 1 to the enterprise agreement.
Nor am I satisfied that the duties required by the applicant by the 2016 position description represented such a change in the nature and extent of the duties and role to be performed by the applicant that it could be said that QUT has repudiated the employment agreement it has with the applicant. Requiring her to perform the tasks and duties as set out in the 2016 position description was not a breach of the applicant’s employment contract with QUT. There may have been a refocusing of the duties she was to perform and a change in the way in which she was to perform those duties but her role remained, her position remained and she was being asked to deploy the same skill sets that she has deployed in the past.
The unfortunate reality in this case is that the applicant became unhappy with the way her role had, quite legitimately I find, evolved. She sought redundancy. I formed the strong impression that by July, 2016 the applicant was so focussed on a departure from QUT’s employment that involved redundancy (see T81 line 20 to T83 line 16) that both her attitude and performance declined. She did not like the way in which her duties were transitioning to fit with QUT’s international business. The applicant frequently exaggerated her evidence e.g. about her job being travel intensive; and that her position description had “absolutely no relationship” to her previous role. Those matters were plainly not so on her own evidence. Moreover, from 30 August, 2016 the applicant actively sought alternate employment. Her cross-examination on this issue (see T88 line 14 to T89 line 23) represented one of the low points of her evidence, as she disingenuously sought to distance herself from one of the employment applications she made.
I am not satisfied that the changes to the applicant’s position were such that her position ceased to exist for all practical purposes. Her position – Manager, International Business, continued to exist. The changes reflected an evolution of her tasks which was required to ensure the role continued to be adapted to its primary function. Ms Nair’s duties in relation to the Australia Awards and HDR programs were not removed – her own evidence was that she was never told that she should not perform her usual duties or functions in that regard. They were no longer a key focus of the position given the decline in the funding available and the student number flowing through those sources.
Whilst Ms Nair was required to use data to justify QUT’s recruitment initiatives and show a “return on investment”, that was part and parcel of her previous duties. The principal function of the applicant’s position, as described by Ms Chuah in her affidavit, was “… to support the strategic development and growth of QUT’s international recruitment for the purpose of creating income for the University”. In this position, Ms Chuah says the applicant is “… required to regularly reassess the best strategies and methodologies for recruiting international students as circumstances change”. That was generally consistent with the applicant’s own description of her role. Throughout her employment, the applicant’s principal function remained the same although the means of delivering that function evolved from time to time.
After the applicant’s employment ended QUT filled the position pursuant to the 2016 position description. Mr Darragh Murray replaced Ms Nair and he had a particular personal expertise in data analysis but does not mean that the applicant would have been required to perform complex data analysis beyond her competency if she remained in the position. In any event, data analysis, including the analysis of complex market reports was always a requirement of the role.
The applicant argues that the shift from her 2013 position description to her 2016 position description was accompanied (or perhaps embodied) in a change in the way in which she worked. She argues that from her return to work at the end of 2015 she was required to undertake “project work” which she found demeaning and below her status. The position became a “reporting role” (although what that meant was not explained). Ms Nair’s position was always a reporting role, however, in that she always had a superior to whom she reported. The identity of that person changed over time. Moreover, whilst the allocation of tasks for her to work on represented something of a change in the autonomy of her role, her previous duties and work was not taken from her as she acknowledged in cross-examination. She did make the point that the volume of “project work” she was allocated by Ms Chuah made it difficult to attend to her other tasks, but there was no evidence that she was directed not to perform those tasks. The tasks assigned to the applicant in 2015 and early 2016 were squarely within the duties provided in the previous position description.
When did the applicant’s employment end?
The oral evidence of the applicant and Ms Chuah was unhelpful in this regard, principally for the reasons stated above. A more reliable source of evidence about this issue is the correspondence passing between the solicitors representing the parties between 30 August, 2016 and 27 October, 2016 all of which is annexed to the applicant’s affidavit filed on 5 April, 2017. The first point to be made is that, whilst the applicant sought to suggest that she had no input into her solicitor’s correspondence, on reflection and having had regard to the transcript, I do not regard as reliable any evidence the applicant gave about whether or not she gave instructions to send out the letters sent by her solicitor. It is more likely than not that any letter sent on her behalf was with the applicant’s full knowledge and instructions. There is nothing to objectively suggest that the applicant’s solicitors would act without her instructions.
The second point follows from the first – it is the applicant’s solicitor’s letters that provide the clearest evidence about when the applicant’s employment with QUT ended. In the applicant’s solicitor’s letter of 30 August, 2016 it was asserted that QUT had repudiated the contract of employment, thus constructively dismissing the applicant. The basis of this is explained by reference to “reasons set out in previous correspondence”. No such previous correspondence is explicitly identified in any of the evidence. In essence she was contending that her role had so changed as to mean her position was redundant. QUT, through its solicitor’s letter dated 12 September, 2016 rejected this contention. On 20 September, 2016 the applicant sought to clarify the letter of 30 August, 2016 by seeking to confirm that she accepted “your client’s repudiation of the contract of employment on 30 August, 2016”, but later noted that QUT does “not recognise our client’s acceptance of repudiation”. In effect, therefore, one party was arguing that the other had repudiated a contract, which the other party denied. It is clear that the applicant’s perspective (as expressed in her solicitor’s correspondence) was that she was no longer employed by QUT on 30 August, 2016 but notwithstanding that, in cross-examination, the applicant suggested that in her mind she was still employed by QUT after 30 August, 2016 (see T91).
The applicant’s perspective was clearly confirmed on 11 October, 2016 when the applicant communicated to QUT that she had returned her work items (iPad, iPhone, laptop, staff International Development, corporate credit card). This letter, and the return of the property was confirmed by QUT on 13 October, 2016. The same letter makes what was not only a relevant but, with respect, logical observation – that by returning these goods the applicant “indicates that [she] no longer wishes to continue her employment with the university.” It must be remembered that she had not worked since 11 or 12 July, 2016. The applicant’s solicitor’s letter of 17 October, 2016 makes her position abundantly clear: “Whatever your client’s position, it should be apparent that the employment relationship is at an end. The fact that the employment relationship has ended, should have been apparent to your client for some time now.”
There is an exchange of correspondence between the parties on 20 October, 2016. QUT asserted that the applicant told Ms Chuah on 9 October, 2016 that she would be returning to work in late October. The applicant denies this. Given the unreliability of the evidence of both witnesses, I conclude there was probably a misunderstanding by both witnesses about the effect of their conversation. Having regard to the correspondence from the applicant’s solicitors referred to above, however, it is highly unlikely that she had any intention to return to work in October, or at all. The real significance of QUT’s letter of 20 October, is that it makes it very clear that the applicant would be considered to have abandoned her employment if she did not return to work. The applicant’s solicitor’s letter of that date, and the subsequent service on 27 October, 2016 of her amended statement of claim made it clear she was not returning to work.
The final letter in this exchange is dated 27 October, 2016 and comes from QUT, observing that the applicant’s intention not to return to work was apparent. She would thus be treated as having abandoned her employment and thereby repudiated her employment contract. The repudiation was accepted by QUT. This letter makes it clear that QUT needed to establish a date for the abandonment of employment, for the purposes of calculating accrual of entitlements: “… it will treat 20 October 2016 as the date of Ms Nairs’ employment with QUT ceased.” I accept that there is an element of both arbitrariness and artificiality in the allocation of this date. However, those features also apply to the date contended for by the applicant, 30 August, 2018.
Ms Nair’s case depends upon a finding that her duties so changed by August, 2016 that it could be said that QUT repudiated the employment contract it had with her either because her position had become redundant or it had so changed her position that it no longer represented the same position. The key proposition advanced by her is that an employee’s job will be redundant if the employee’s duties are so changed that their original position ceases to exist for practical purposes. When assessing whether an employee’s job has ceased to exist for practical purposes, the following matters are relevant:
a)the examination of the position and whether or not it has been made redundant must be undertaken as a matter of substance, not form;
b)the concept “cannot be applied in the manner of a mathematical formula ... fact that the duties attached to a position have changed or some responsibilities have been transferred to other positions does not establish that the position, or the occupant of the position, has been made redundant”: UGL Rail Services Ply Limited v Janik [2014] NSWCA 436 at [132].;
c)the question may be approached by asking whether the position has been abolished or largely stripped of its functions (as a matter of substance, not form);
d)to what degree this needs to be the case can be stated in various ways, including (according to UGL Rail Services Ply Limited v Janik (above)):
i)where the change is so substantial that for practical purposes the position no longer exists;
ii)where the position appears to continue (whether under the same or a different name) but the duties and responsibilities are so substantially altered that it is largely stripped of its functions; or
iii)where the position is effectively emptied of duties and in reality abolished or has effectively ceased to exist or at least the duties had been fundamentally changed so as to largely strip it of its functions.
But it follows from the findings that I have expressed above about the effect of the 2016 position description and Ms Chuah’s actions upon Ms Nair’s employment with QUT that QUT did not repudiate the employment agreement in August 2016 as the applicant contends. There was nothing for the applicant to accept so as to bring the employment relationship to an end at that time.
It is well settled that an employee will have abandoned their employment if the employee has clearly demonstrated an intention to no longer be bound by the terms of the contract of employment. But the inquiry is one of fact as Murphy JR explained in Jaymie Ellis v Conaust Ltd [1995] IRCA 668:
The concept of abandonment of employment is only a species of conduct which can be characterised as a repudiation of the employment contract. The issue here is to ascertain whether as a matter of contractual principle what happen[ed] was the termination of the employment at the initiative of the employer. Such an exercise requires an analysis of what happened to ascertain what was the real causal event which gave rise to the termination of the employment.
There are numerous cases, although decided in a statutory context of unfair dismissal that consider the meaning of termination of employment “at the initiative of the employer.” The proper construction of this phrase was considered by the Full Bench of the Industrial Relations Court in Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200, 205:
In these proceedings it is unnecessary and undesirable to endeavour to formulate an exhaustive description of what is termination at the initiative of the employer but plainly an important feature is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee.
Generally speaking termination is at the initiative of the employee in cases of abandonment: see for example Duke v L2 Project Management- Norseman Pty Ltd [2013] FWC 2993; Christopher Jason Millard Wright v Department of Corrective Services [2012] WAIRComm 764; Ladder v Department of Families, Housing, Community Services and Indigenous Affairs [2008] AIRC 684; Burgess v Snowy Mountains Engineering Corporation Ltd [1995] IRCA 553.
I am satisfied that the applicant made it unequivocally clear that she no longer intended to return to work and be bound by her employment contract. That is to say, she voluntarily left her employment with QUT. So much is clear from the correspondence sent to QUT’s solicitors by the applicant’s solicitors:
a)requesting that the applicant be paid out her entitlements because her employment had ceased;
b)refusing to confirm that the applicant intended to return to work when repeatedly asked; and
c)stating that “our client has returned her work items ... it should be apparent to your client that the employment relationship is at an end”.
On 27 October 2016, QUT (by its solicitors) wrote to the applicant’s solicitors to advise that it considered the applicant had made it unequivocally clear that she did not intend to return to work and QUT had no choice but to accept that she had abandoned her employment.
QUT submits that the applicant, in abandoning her employment, repudiated her employment contract and termination was therefore at her initiative. I accept that argument. It is incorrect to say that termination was at the initiative of QUT simply because QUT accepted the applicant’s decision to abandon her employment. The applicant voluntarily returned QUT’s belongings and left her employment while on a period of extended approved leave. That clearly evinced an intention to abandon her employment especially in the face of QUT, through its solicitors’ correspondence, consistently maintaining that the applicant was considered employed and that the applicant was expected to return to work.
I find that the applicant abandoned her employment by 20 October, 2016. The mantra of her evidence – that her role had so changed that it had become redundant – was neither supported by the objective evidence nor her own evidence. In cross-examination, when the applicant was systematically taken to the details of her old and new position descriptions, all that occurred was that the substantial similarities become more and more evident, and the applicant’s unhappiness about the evolution of her role more and more obvious. Market conditions had changed for QUT, particularly in relation to the Australia Awards which had formerly played a significant part in the applicant’s work. Whilst the applicant seemingly could not accept the inevitable changes to her work consequent on this, historically she had accepted quite significant changes to her position description which also reflected change. Many of the aspects of her new role of which she complained she in fact performed satisfactorily from QUT’s perspective. There was no repudiation by QUT of the applicant’s contract of employment with her.
The claim for redundancy pay
The applicant’s claim for redundancy pay is based on the premise her employment ended on 30 August, 2016. The applicant submits that QUT repudiated the contract by its conduct in making the applicant’s position redundant without communicating that decision to her and failing and/or refusing to pay the applicant the redundancy payments to which she was entitled under clause 58.2 of the enterprise agreement. Thus, the applicant submits that she is entitled to be paid 58 weeks’ redundancy pay in accordance with clause 58.7.1 of the enterprise agreement, being $122,208.22.
QUT contends that the applicant was not made redundant within the meaning of redundancy as defined in the enterprise agreement, and therefore was not entitled to redundancy pay.
The applicant’s entitlement to redundancy pay depends on the construction of the words in clause 58.7.1 of the enterprise agreement: Amcor Limited v Construction, Forestry, Mining and Energy Union & Ors (2005) CLR 241 at 246. Clause 58.7.1 of the enterprise agreement provides:
Subject to sub clause 58.7.2 a staff member whose application for voluntary redundancy is accepted by the Vice-Chancellor, or who is made redundant involuntarily by the Vice-Chancellor, will be entitled to the following benefits:
| VOLUNTARY REDUNDANCY | INVOLUNTARY REDUNDANCY |
| Ongoing and fixed-term staff members: | Ongoing and fixed-term staff members: |
| A lump sum of 18 weeks’ salary plus two (2) weeks’ salary for each completed year of continuous ongoing and fixed-term service and an additional payment of eight (8) weeks’ salary. | A lump sum of 18 weeks’ salary plus two (2) week’s salary for each completed year of continuous ongoing and fixed-term service. |
| Ongoing and fixed-term staff members An additional payment of one (1) weeks’ salary. | Ongoing and fixed-term staff members with eligible prior QUT casual service (as per sub clause 58.7.4 (d)): An additional payment of one (1) weeks’ salary |
| The total amount will be capped at 74 weeks. | The total amount will be capped at 74 weeks. |
According to clause 58.7.1 the entitlement to redundancy pay only arises when the Vice Chancellor has made a decision to either to accept a voluntary redundancy application or to make a staff member involuntarily redundant. Clause 58.1 of the enterprise agreement defines redundancy for the purposes of the enterprise agreement as follows:
Redundancy is a situation where the position occupied by an ongoing or fixed-term staff member (excluding pre-retirement fixed-term appointment and contingent research funded fixed-term appointment) is identified as surplus to the University’s requirements as a result of:
a) demonstrated financial constraints leading to the cessation or reallocation of the function or functions performed by the staff member to other areas of the University; or
b) a decision by the University to discontinue or curtail a particular service or activity; or
c) technological change and development; or
d) changes imposed through legislative amendment.
There is no evidence that the Vice Chancellor has made a decision to either accept a voluntary redundancy application from the applicant or to make her involuntarily redundant. I accept the respondent’s submission that the applicant could not have been made redundant within the meaning of clause 58 of the enterprise agreement unless her position was identified by QUT to be surplus to its requirements and there was a relevant decision by the Vice Chancellor.
The evidence does not support a finding that her position was surplus to QUT’s requirements. For the reasons I have given above, her position remained, albeit with a different focus on some of the duties that she was to perform. I find that the applicant’s position was not “surplus to the University’s requirements” because QUT required, and according to the evidence continues to require, the position carried out by the applicant before the abandonment of her employment to be performed on an ongoing basis. Thus, in late 2016, after the applicant abandoned her employment, QUT commenced an external recruitment process to employ a new staff member in the position pursuant to the 2016 position description. From 27 February, 2017 Mr Darragh Murray was employed in the position on an ongoing basis.
Moreover, even if I am wrong about that the other criteria in the definition in clause 58.1 were not met, namely:
a)QUT has not made a decision “to discontinue or curtail a particular service or activity” as required by clause 58.1(a). The position remains necessary and the duties of the position continue to serve the primary function of the position;
b)there are no “demonstrated financial constraints” which have led to the cessation or reallocation of the applicant’s functions in the position as required by clause 58.1(b); and
c)the changes to the position have not occurred as a result of “technological change and development” as required by clause 58.1(c), or as a result of “changes imposed through legislative amendment” as required by clause 58.1(d).
There was no redundancy within the meaning of clause 58.1 of the enterprise agreement and an entitlement to redundancy pay for Ms Nair was never enlivened. QUT did not contravene clause 58.7.1 of the enterprise agreement or s.50 of the Fair Work Act by failing to make a redundancy payment to the applicant.
Redundancy under s.119 of the Fair Work Act 2009?
Section 119(1)(a) of the FW Act provides that:
(1) An employee is entitled to be paid redundancy pay by the employer if the employee’s employment is terminated:
(a) at the employer’s initiative because the employer no longer requires the job done by the employee to be done by anyone, except where this is due to the ordinary and customary turnover of labour …
The issue as to whether termination is at the initiative of the employer under s.119 is plainly “a question of fact to be determined on the evidence before the court or tribunal called upon to determine these question”: CAE Australia Ply Ltd v Zekants & Anor [2012] FWA 7992 at [11].
Here, the termination of the applicant’s employment was at her initiative and not at the initiative of QUT. I have found above that the applicant abandoned her employment. The evidence that she gave in this regard to the contrary in cross-examination was unconvincing and inconsistent with her actions. The first integer of s.119(1)(a) of the Act – the requirement that “the employee’s employment is terminated at the employer’s initiative” is not satisfied and so the obligations created by s.119 of the Act is not engaged in this case.
Moreover, the second limb of s.119(1)(a) of the Act, which requires the applicant’s employment to be terminated because the employer no longer requires the job done by the employee to be done by anyone is also not satisfied. The respondent directed my attention to the decision of the Full Court of the Supreme Court of South Australia in Bampton v Viterra [2015] SASCFC 87, and in particular to the following passage from the judgment of Blue J where it was held that the word “job”:
a)is not confined merely to the tasks performed by the employee, such that redundancy is confined to a situation in which none of those tasks are performed by any employee after the relevant change; but also
b)is not synonymous with the employee’s ‘position’ such that any substantive change to any material aspect of that position results in the job no longer being required to be performed by anyone.
The applicant’s “job” can be considered to be, in general terms, the duties as stated in the 2013 position description as reflected in the 2016 position description. Even if it is accepted that QUT terminated the applicant’s employment, it is clear that such termination was not because QUT no longer required the applicant’s job to be done by anyone. The evidence shows that QUT commenced an external recruitment process based on the 2016 position description and employed Mr Murray from 27 February, 2017 to do the job that was formerly done by the applicant.
The second limb of s.119(1)(a) of the Act is also not satisfied.
This aspect of the applicant’s claim cannot succeed.
Redundancy at common law?
The applicant had no entitlement to redundancy pay outside of the enterprise agreement and the Act. In any event, I find that the applicant and her position was not redundant having regard to the ordinary and common meaning of redundancy as discussed above.
The claim for penalties for breaches of the enterprise agreement
The applicant submits that QUT has breached the following terms of the enterprise agreement:
a)clause 58.2 by failing to consult with the applicant in relation to the redundancy of her employment; and
b)clause 58.7.1 by failing to pay the applicant redundancy pay.
The applicant submits that each of the above breaches amounts to a contravention of s.44 (by reason of s.119 of the Act) and/or s.50 of the Act, for which the applicant seeks the imposition of a pecuniary penalty.
Clause 58.2 states:
In accordance with clause 11, following a decision made by the University that the functions of a position(s) may no longer be required or the position(s) may no longer be needed, and that decision may lead to termination of employment, the University will hold discussions with the staff member(s) directly affected and the Unions.
All relevant information and data will be provided to assist in consultations. In any discussions, the University will not be required to disclose information that would be adverse to the University’s interests.
QUT did not make a decision that the functions of the applicant’s positon may no longer be required or that her position may no longer be needed. QUT did not contravene clause 58.2 of the enterprise agreement and s.50 of the Act by failing to consult with the applicant.
In any event, given my rejection of the applicant’s claims that she was made redundant by QUT she does not establish that QUT has contravened cll.58.2 or 58.7.1 of the enterprise agreement.
The alleged failure to provide pay slip in accordance with s.536 of Fair Work Act
Section 536(1) of the Fair Work Act provides that:
An employer must give a pay slip to each of its employees within one working day of paying an amount to the employee in relation to the performance of work.
The applicant claims that QUT has contravened this provision because she did not receive her final payslip until a number of days after the day on which QUT made its last payment to her in respect of her employment. There are two answers to the applicant’s claims about this aspect of the matter.
First, s.536(1) was not engaged on the facts of the case. The obligation on QUT was to give a pay slip to the applicant within one working day of paying an amount to her in relation to the performance of work. The amounts paid to her and recorded in the final pay slips were not amounts paid to her in relation to the performance of work. They were amounts paid to her for entitlements that accrued to her by reason of the length of her service with QUT, rather than the performance of work.
Second, even if that is incorrect, QUT met its obligations under the subsection. The evidence establishes that when QUT paid the applicant the balance of her entitlements following the termination of her employment and made its last payment to her, the applicant no longer had access to QUT’s intranet, which is the method by which QUT delivers payslips to its employees. I find that in accordance with QUT’s usual practice, the “Payroll team” posted her final pay slip within 24 hours of the day on which she was paid, namely 9 November, 2016. The applicant received a copy of her final pay slip several days later via the post.
The Fair Work Act does not contain any provisions that might elucidate what is meant by the term “give” in s.536(1) of the Act. However, s.28A of the Acts Interpretation Act 1901 (Cth) provides:
28A Service of documents
(1) For the purposes of any Act that requires or permits a document to be served on a person, whether the expression “serve”, “give” or “send” or any other expression is used, then the document may be served:
(a) on a natural person:
(i) by delivering it to the person personally; or
(ii) by leaving it at, or by sending it by pre‑paid post to, the address of the place of residence or business of the person last known to the person serving the document; or
(b) on a body corporate—by leaving it at, or sending it by pre‑paid post to, the head office, a registered office or a principal office of the body corporate.
Note: The Electronic Transactions Act 1999 deals with giving information in writing by means of an electronic communication.
(2) Nothing in subsection (1):
(a) affects the operation of any other law of the Commonwealth, or any law of a State or Territory, that authorises the service of a document otherwise than as provided in that subsection; or
(b) affects the power of a court to authorise service of a document otherwise than as provided in that subsection.
Although s.28A of the Acts Interpretation Act applies to “service of documents” it is clear from the text of s.28A(1) that the use of the expression “give” in s.536(1) of the Fair Work Act engages the former subsection. Subsection 28A(1)(a)(ii) authorised the giving of the final pay slip to the applicant by sending it by pre-paid post to the address of the place of residence last known to QUT for the applicant. That is what occurred in this case. The final pay slip was posted to the applicant within one working day of paying her final pay. When she received her payslip is not to the point. Subsection 536(1) required QUT to give the payslip. The Acts Interpretation Act authorised that to be done by posting it to her. That is what occurred. It occurred within the timeframe required by the Fair Work Act. Subsection 536(1) of the Fair Work Act is not concerned with when the relevant employee received the payslip.
I find that QUT did not contravene s.536(1) of the Act.
The alleged unlawful deduction
An employer may only deduct an amount payable to an employee if:
a)the deduction is authorised in writing by the employee; and
b)it is principally for the employee’s benefit.
Section 324 of the Fair Work Act provides:
324 Permitted deductions
(1) An employer may deduct an amount from an amount payable to an employee in accordance with subsection 323(1) if:
(a) the deduction is authorised in writing by the employee and is principally for the employee’s benefit; or
(b) the deduction is authorised by the employee in accordance with an enterprise agreement; or
(c) the deduction is authorised by or under a modern award or an FWC order; or
(d) the deduction is authorised by or under a law of the Commonwealth, a State or a Territory, or an order of a court.
A figure of “-$2,519.80” in respect of long serve leave appears in the applicant’s final pay slip. The total sum of the applicant’s final entitlements was recorded as being reduced by $2,519.80 in the final pay slip.
QUT argues that the figure of “-$2,519.80” records a payment which had already been made to the applicant but not elsewhere recorded. It argued that it was an administrative entry to ensure that an overpayment did not occur. QUT’s argument is supported by the evidence. Christine Delaney, in her affidavit affirmed 5 May, 2017 says that:
a)the applicant’s employment was taken to have terminated on 20 October, 2016;
b)the “Payroll team” was not aware of this at the relevant time and paid the applicant six days of long service leave, being the amount of $2,519.80, for the period between 20 October, 2016 to 28 October, 2016;
c)when notified of the date of termination of employment, the Payroll system automatically re-credited six days’ long service leave to the applicant’s accrued long service leave balance in respect of that period because she could not ‘take’ long service leave during a period in which she was not employed. Instead she was entitled to be paid in lieu of it;
d)a payroll officer adjusted the final pay to correctly reflect on the final pay slip that six days of the applicant’s accrued long service leave had already been paid out;
e)the adjustment occurred prior to any monies being transferred; and
f)if the adjustment had not occurred, the applicant would have received an overpayment as she had already received the $2,519.80 owed to her in the previous pay run.
That is to say, there was no deduction but rather a book entry to record the applicant’s entitlements correctly.
I accept QUT’s argument that there was no relevant deduction for the purposes of s.324(1) of the Fair Work Act.
Moreover, the applicant’s case on this point must fail for another reason. Subsection 324(1) is only engaged in respect of deductions from an amount payable to an employee in accordance with subsection 323(1). Subsection 323(1) provides:
323 Method and frequency of payment
(1) An employer must pay an employee amounts payable to the employee in relation to the performance of work:
(a) in full (except as provided by section 324); and
(b) in money by one, or a combination, of the methods referred to in subsection (2); and
(c) at least monthly.
The amount from which the alleged deduction was made was not an amount payable to the applicant in relation to the performance of work. QUT did not deduct any amount, as a matter of fact, because the applicant had already received the relevant amount in the earlier pay run. The “deduction” was a book entry recording and accounting for that fact.
The applicant was not denied any entitlements lawfully owing to her by QUT’s conduct. An adjustment was made to the data recorded on the payslip to reflect that while it had been paid as leave, it was more correctly characterised as a payment in lieu of leave.
I find that QUT did not make an unlawful deduction in breach of s.324(1)(a) of the Act.
Notice
By reason of my finding that the applicant abandoned her employment, the applicant was not entitled to any notice of termination, or payment in lieu of notice from QUT. However, in the event that I am wrong about that, QUT submits that the enterprise agreement and the Act govern the notice of termination applicable to the applicant’s employment.
It is well settled that a term can be implied into a contract where it is necessary to ensure that the rights created by a contract are not rendered worthless or seriously undermined: Commonwealth Bank of Australia v Barker (2014) 253 CLR 169 at [29], citing Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 450, which, in turn, refers to Nullagine Investments Pty Ltd v Western Australian Club Inc (1993) 177 CLR 635 at 647-8, 659.
Specifically in the context of an employment contract, the High Court has observed that, “subject to the express provisions of the contract and all applicable statutes”, there is an implied duty to give reasonable notice on the termination of an employment contract “other than for breach”: CBA v Barker (above) at [30].
The implied duty to give reasonable notice is subject to the express provisions of the applicant’s employment contract and any applicable industrial instruments. So, for example, in Brennan v Kangaroo Island Council (2013) 120 SASR 11, the Full Court of the Supreme Court of South Australia refused to imply a term of reasonable notice where a state award provided for a mandatory period of notice. The Court held at [34] that:
[T]he implication of an obligation to give reasonable notice was not necessary to give business efficacy to the appellant’s employment contract. The existence of the award provision, albeit that it operated outside the contract, had the result that the employment arrangement was effective without any need to imply an obligation to give reasonable notice, ie there was no gap that needed to be filled. Furthermore, because of the existence of the award provision it could not be said that the implication of such a term would have been accepted by the contracting parties as a matter so obvious as to ‘go without saying’.
In Kuczmarski v Ascot Administration Pty Ltd (2016) 259 IR 233 an employee was made redundant with his employment terminating immediately. He received payment of accrued annual leave and long service leave, severance pay, and five (5) weeks’ pay in lieu of notice pursuant to s.117(2) of the Fair Work Act. The Court found no necessity to imply a term of reasonable notice of termination and such notice was not implied into the contract because s.117 deals with the topic of the notice required to terminate a contract of employment.
The applicant agrees that her employment is covered by the enterprise agreement. Here, clause 57.2 of the enterprise agreement is such that it provides for the periods of notice that are to be given when the employment relationship is to be terminated. An express provision in an applicable industrial instrument provided for in the applicant’s contract of employment provides for the relevant period of notice. The existence of that term means, in my view, that there is no occasion to imply a term into the contract of employment as the applicant contends.
In the event that I am wrong to conclude that the applicant’s employment did not end at the initiative of QUT on 30 August, 2016 (as the applicant claims), then the applicant submits that she is entitled to be paid (in addition to redundancy pay) pay in lieu of notice.
Whilst the applicant submits that she is entitled to be paid six months’ pay, or an amount equal to $54,578.14, for breach of the implied term that QUT could only terminate her employment by giving the applicant “reasonable notice” or payment in lieu thereof, I reject that submission. The applicant was entitled to five weeks’ notice of the termination of her employment if it was to be terminated at QUT’s initiative. The applicant would be entitled to $10,495.80 by way of damages for QUT’s failure to give her that notice or make a payment to her in lieu of that notice.
Conclusion
The applicant has not proved the respondent contravened clause 58.7.1 of the enterprise agreement and therefore s.50 of the Fair Work Act, by failing to pay the applicant redundancy pay that was allegedly payable under the enterprise agreement. For the reasons I have given above, the applicant was not entitled to redundancy pay under the enterprise agreement that applied to her employment.
The applicant has not proved the respondent contravened s.119 of the Fair Work Act, and therefore s.44 of the Act, by failing to pay the applicant redundancy pay that was allegedly payable under the National Employment Standard. The applicant was not entitled to redundancy pay as a result of abandoning her contract of employment.
The applicant has not proved the respondent contravened clause 58.2 of the enterprise agreement, and therefore s.50 of the Fair Work Act by failing to consult with the applicant regarding the alleged redundancy. There is no finding of redundancy and the respondent was not required to consult the applicant under clause 58.2 of the enterprise agreement.
The applicant has not proved the respondent contravened s.536 of the Fair Work Act by allegedly failing to give the applicant a pay slip within one working day of paying her in relation to the performance of work. The respondent provided the applicant with a copy of her final pay slip by posting it within one working day of payment.
The applicant has not proved the respondent contravened s.324 of the Fair Work Act by allegedly deducting an amount of $2,519.80 from the applicant’s final pay. The alleged deduction was an administrative entry to ensure that an overpayment did not occur and the applicant was not denied any entitlements lawfully owing to her by the respondent’s conduct.
The applicant has not proved the respondent breached the applicant’s contract of employment by failing to pay the applicant in lieu of an alleged implied term of reasonable notice. The applicant was not entitled to notice as she abandoned her contract of employment and, in any event save abandonment, there is no implied term of reasonable notice as she would have been entitled to five weeks’ notice of termination under both clause 57.2 and s.117 of the Fair Work Act.
For the reasons above, the application is dismissed.
I certify that the preceding one hundred and fifty-five (155) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 19 June, 2019.
Date: 19 June, 2019
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