Roddy v Sydney Adventist Hospital Ltd
[2012] FMCA 1199
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| RODDY v SYDNEY ADVENTIST HOSPITAL LTD | [2012] FMCA 1199 |
| CONSUMER LAW – Alleged representations as to employment – representations not made – reasonable period of notice – no new contract – application dismissed. |
| Competition and Consumer Act 2010 (Cth), ss.4, 18, 31, 238 of Sch.2 Trade Practices Amendment (Australian Consumer Law) Act (No.2) 2010 (Cth), Sch.7 Trade Practices Act 1974, ss.52, 82 Federal Magistrates Court Rules 2001 (Cth), r.1.03 Federal Magistrates Court Act 1999 |
| Wardley Australia Limited v Western Australia [1992] HCA 55; (1992) 175 CLR 514 Sappideen, O’Grady, Riley, Warburton, Macken’s Law of Employment, LawBook Co, 7th edition, 2011 |
| Applicant: | JORDAN RODDY |
| Respondent: | SYDNEY ADVENTIST HOSPITAL LTD |
| File Number: | SYG 2485 of 2011 |
| Judgment of: | Nicholls FM |
| Hearing date: | 29, 30 May 2012 |
| Date of Last Submission: | 26 July 2012 |
| Delivered at: | Sydney |
| Delivered on: | 21 December 2012 |
REPRESENTATION
| Counsel for the Applicant: | Ms L Chan |
| Solicitors for the Applicant: | McArdle Legal |
| Counsel for the Respondent: | Mr M Easton |
| Solicitors for the Respondent: | Herbert Greer |
ORDERS
The application made on 2 November 2011 is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2485 of 2011
| JORDAN RODDY |
Applicant
And
| SYDNEY ADVENTIST HOSPITAL LTD |
Respondent
REASONS FOR JUDGMENT
This is an application, made on 2 November 2011, pursuant to the Competition and Consumer Act 2010 (Cth) (“CCA”). Specifically ss.18 and 31 of Sch.2, the “Australian Consumer Law” (“ACL”), to the CCA. The applicant, Mr Jordan Roddy, alleges that the respondent, Sydney Adventist Hospital Ltd (“SAH”), breached s.31 of the ACL by making misleading and deceptive representations prior to, and in inducement of, him accepting employment with the respondent.
Further, and said to be with reference to the Court’s accrued jurisdiction, the applicant pressed a common law complaint for breach of contract of employment. Specifically, Mr Roddy alleged that SAH breached an implied term of his contract when his position was made redundant in May 2011. That implied term was said to be that his employment would be terminated on reasonable notice.
Background
Mr Roddy was employed by SAH from January 2009 to May 2011. While certain events during the course of his employment are variously relevant, the central focus of his complaint is on the period immediately leading up to his employment, in particular, various discussions in which he participated in that period preceding employment, and separately, the period upon and following shortly after, the termination of his employment.
The Relevant Legislation
This application concerns events that, to a large part, predate the introduction of the relevant legislation on 1 January 2011. The Trade Practices Amendment (Australian Consumer Law) Act (No.2) 2010 (Cth) (“the Amending Act”) preserved the application of the Trade Practices Act 1974 (Cth) (“TPA”) to causes of action in relation to, or arising from, acts or omissions prior to that date.
The starting point in the relevant line of reasoning is that the cause of action in the current case did not actually accrue until the loss or damage was sustained (see Wardley Australia Limited v Western Australia [1992] HCA 55; (1992) 175 CLR 514 at 525 per Mason CJ, Dawson, Gaudron, McHugh JJ and ss.52 and 82 of the TPA).
In the current case the applicant relies on it.6 of Sch.7 to the Amending Act for the proposition that both the TPA and the ACL apply to causes of action arising after 1 January 2011. The applicant therefore elected to proceed in that fashion.
There was no dispute raised by the respondent to the applicant’s argument that the cause of action in the current case arose after 1 January 2011, even though, in great part, it relates to acts or omissions that occurred before that date.
The Application to the Court
The application to the Court refers to the matters set out in the applicant’s statement of claim. The applicant’s case under the ACL can be summarised as depending on the following:
1)Mr Roddy was interviewed by and/or had conversations with various SAH employees in October 2008 (see further below).
2)During that process SAH employees made several representations to Mr Roddy. Those “employment representations” are particularised as being made in “conversations between Phil Currie, Leon Clark” and the applicant in October 2008. Further, the four pleaded representations were that:
i)SAH saw Mr Roddy as fitting into its long-term succession plan.
ii)SAH saw Mr Roddy as a potential candidate for the role of Chief Operation Office (“COO”) or Chief Executive Officer (“CEO”) of the hospital.
iii)Mr Roddy would be given every opportunity by SAH so that he might be promoted to become part of the hospital’s senior management.
iv)He would have long term and permanent employment.
3)In breach of s.31 of the ACL, those representations were liable to mislead Mr Roddy.
4)Further, and in contravention of s.18 of the ACL, by making those representations SAH engaged in conduct that was misleading or deceptive, or likely to mislead or deceive.
5)Those “employment representations” were relied on by the applicant. They induced him to terminate his employment of some years in United States of America (“United States”), accept SAH’s offer of employment and relocate, with his family, to Australia.
6)As a result of those misleading and deceptive representations Mr Roddy suffered loss and seeks damage.
Mr Roddy’s second, later described as “primary” complaint, said to be brought under the Court’s accrued jurisdiction, was set out in his statement of claim as follows:
1)On or about 17 December 2008, Mr Roddy entered into an employment contract with SAH for the position of project officer. (“the December 2008 Contract”) (see further below).
2)On or about March 2009, Mr Roddy was promoted to the position of Project Management Office (“PMO”) manager. In that role he was given staff to manage, as well as a pay rise. That is, that his income, plus superannuation, became $132,000.00 per year (“the March 2009 contract”).
3)By reason of that change in his duties, the December 2008 contract was terminated.
4)No new written contract was entered into by the parties.
5)It was an implied term that, on termination of his employment, reasonable notice would be given to Mr Roddy.
6)In May 2011, SAH terminated Mr Roddy’s contract of employment. It did not give reasonable notice of that termination. It gave one month’s notice of termination.
7)As a result of that breach of the implied term, Mr Roddy suffered loss and damages.
In relation to the applicant’s second attack on the respondent, whether he was given reasonable notice for the termination of his employment, the applicant’s assertion of this Court’s capacity to entertain such a claim, based on its accrued jurisdiction to deal with the whole of a matter (said to include a matter not falling within the jurisdiction imposed by a relevant statute), was not seemingly opposed by the respondent. I say “seemingly” because the respondent made no definitive declaration as to its position. However, SAH proceeded to respond to the applicant’s case, and made submissions on the applicant’s assertions in relation to this attack, as if it conceded the point.
In light of the absence of any opposition, it is appropriate to proceed on the assumption of jurisdiction. In any event, I agree with the applicant’s submissions and the authorities he relied on as providing support for the Court’s jurisdiction (see Phillip Morris Incorporated v Adam P Brown Male Fashions Pty Ltd [1981] HCA 7; (1982) 148 CLR 457 at 475 per Barwick CJ, Re Wakim; Ex parte McNally and Anor [1999] HCA 27; 198 CLR 511; 163 ALR 270; 73 ALJR 839, Stack v Coast Securities (No 9) Pty Ltd [1983] HCA 36; (1983) 154 CLR 261, Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2000] FCA 1572; (2000) 104 FCR 564 at 597 [85], Matheson v Findex Australia Pty Ltd (2011) 252 FLR 197; [2011] FMCA 135 at [21] – [22] per Lucev FM).
The applicant sought the following orders:
“1. Damages pursuant to s236 of the Australian Consumer Law;
2. Damages for breach of contract;
3. Interest;
4. Costs, and
5. Such other orders as the court sees fit.”
Relevant Legislation
The applicant’s contract claim is made under common law. As such, the relevant legislation is only that which relates to the applicant’s complaint under the ACL.
Section 4 of the ACL provides that:
“Misleading representations with respect to future matters
(1) If:
(a) a person makes a representation with respect to any future matter (including the doing of, or the refusing to do, any act); and
(b) the person does not have reasonable grounds for making the representation;
the representation is taken, for the purposes of this Schedule, to be misleading.
(2) For the purposes of applying subsection (1) in relation to a proceeding concerning a representation made with respect to a future matter by:
(a) a party to the proceeding; or
(b) any other person;
the party or other person is taken not to have had reasonable grounds for making the representation, unless evidence is adduced to the contrary.
(3) To avoid doubt, subsection (2) does not:
(a) have the effect that, merely because such evidence to the contrary is adduced, the person who made the representation is taken to have had reasonable grounds for making the representation; or
(b) have the effect of placing on any person an onus of proving that the person who made the representation had reasonable grounds for making the representation.
(4) Subsection (1) does not limit by implication the meaning of a reference in this Schedule to:
(a) a misleading representation; or
(b) a representation that is misleading in a material particular; or
(c) conduct that is misleading or is likely or liable to mislead;
and, in particular, does not imply that a representation that a person makes with respect to any future matter is not misleading merely because the person has reasonable grounds for making the representation.”
Section 18 of the ACL provides:
“Misleading or deceptive conduct
(1) A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.
(2) Nothing in Part 3-1 (which is about unfair practices) limits by implication subsection (1).
Note: For rules relating to representations as to the country of origin of goods, see Part 5-3.”
Section 31 of the ACL provides:
“Misleading conduct relating to employment
A person must not, in relation to employment that is to be, or may be, offered by the person or by another person, engage in conduct that is liable to mislead persons seeking the employment as to:
(a) the availability, nature, terms or conditions of the employment; or
(b) any other matter relating to the employment.
Note: A pecuniary penalty may be imposed for a contravention of this section.”
Before the Court
At the hearing the applicant was represented by Ms L Chan of counsel. Mr M Easton of counsel appeared for the respondent.
At the beginning of the hearing the applicant made an application to amend his statement of claim. All that was said to be sought by the amendment was to add “seven or eight words into [9] and [10] of the statement of claim”. Those “seven to eight words” were: “… unless the applicant fitted in with the communication style of the respondent.”
The respondent objected to that application on the basis that those “little, little words... fundamentally turn the case on its head”. Further, that SAH had not been given notice of the applicant’s application until the day of the hearing and, given the time since the filing of the respondent’s evidence and that orders had been made granting liberty to both parties to apply to the Court for a relisting for further directions, Mr Roddy had had ample opportunity to bring such an application in a timely manner.
I was minded to agree with Mr Easton’s submission. That is, that by the amendment of the statement of claim the applicant essentially sought to add an additional element to his case. That additional element was that the respondent, by staying silent as to its expectations about the applicant’s communication style and his ability to conform to SAH’s “culture” during the course of his employment, engaged in misleading and deceptive conduct. That complaint had not been raised previously and, in the circumstances, its inclusion at such a late stage in the proceedings would disadvantage the respondent.
Further, while the disadvantage to the respondent could be remedied by allowing additional time for SAH to respond, the timetable for the matter had been set down in November 2011. Further, the relevant affidavits, which the applicant asserted gave rise to this issue, had been filed in March 2012. Despite having been on notice of the issue from, at best for the applicant, March 2012 and leave having been granted to the parties to apply to the Court for further directions on three clear day’s notice, the applicant had not sought to amend his points of claim at an earlier time.
In light of the above, leave was not granted to Mr Roddy to file an amended statement of claim. [I note that despite refusing leave to the applicant to amend his statement of claim, the applicant continued to agitate matters that related to that additional element for the better part of the morning of the first day of the hearing – see further below.]
Before the Court the applicant filed, and ultimately relied upon, the following relevant documents and submissions:
1)Application, filed on 2 November 2011.
2)Statement of claim, filed on 2 November 2011.
3)Outline of submissions, filed on 16 May 2012 (“the applicant’s initial written submissions”).
4)Outline of closing submissions, filed on 8 June 2012 (“the applicant’s written submissions”).
5)Outline of closing submissions in reply, presented on 25 July 2012 and filed with leave in Court on 26 July 2012 (“the applicant’s written submissions in reply”).
The respondent filed and relied upon the following documents and submissions:
1)Response, filed on 28 November 2011.
2)Defence, filed on 28 November 2011.
3)Outline of submissions, filed on 24 May 2012 (“the respondent’s initial written submissions”).
4)Outline of closing submissions presented on 12 July 2012 and filed with leave in Court on 26 July 2012 (“the respondent’s written submissions”).
Both parties also gave closing oral submissions on 26 July 2012.
Evidence
The evidence before the Court at the first instance was given, as is usual in this Court, by affidavit. For the applicant, the following affidavits were filed:
1)Mr Jordan Roddy – the applicant – sworn 20 March 2012, to which an annexure was attached (“Mr Roddy’s first affidavit”).
2)Mr Roddy, sworn on 4 May 2012 (“Mr Roddy’s second affidavit”).
3)Ms Gilda Roddy – the applicant’s wife – sworn on 20 March 2012 (“Mrs Roddy’s first affidavit”).
4)Mrs Roddy, sworn on 4 May 2012 (“Mrs Roddy’s second affidavit”).
5)Mr Peter Stacey – a consultant involved in SAH’s major redevelopment plan – sworn on 4 May 2012. [Note: the applicant did not seek leave to read this affidavit.]
In the respondent’s case the following affidavits were filed:
1)Dr Leon Wakefield Clark – Chief Executive Officer (“CEO”) of SAH – sworn on 19 April 2012, which annexed a document.
2)Mr Philip Daryl Currie – General Manager of SAH and Deputy CEO of the SAH Group – sworn on 19 April 2012, to which were attached 16 annexures.
3)Ms Melva Joy Lee – Group Director of Human Resources at SAH – sworn on 19 April 2012, to which were attached 9 annexures.
4)Ms Margaret Susan Duffy – Group Corporate Services Executive Officer – sworn on 18 April 2012.
5)Mr Gray Loddington Hall – Executive Officer of the SAH Group – sworn on 19 April 2012.
6)Ms Julie Marion Behrens – Director of Marketing, PR and Business Development of the SAH Group – sworn on 18 April 2012.
Only Mr Roddy, Dr Clark, Mr Currie, Ms Lee, Ms Behrens and Ms Duffy gave oral evidence at the hearing.
Facts Not In Dispute
The relevant facts, not in dispute, are as follows:
1)Mr Roddy is a qualified engineer and hospital administrator who, up until 2009, had worked in the United States ([3] of Mr Roddy’s first affidavit).
2)In early October 2008, Mr Roddy “emailed” SAH regarding employment opportunities at the hospital (Annexure “MJL – 1” to the affidavit of Ms Melva Joy Lee). [There was dispute between the parties as to whether this was in response to an advertised position or not.]
3)On or about 14 or 16 October 2008, the applicant had a telephone conversation, described by all as a “meet and greet”, with Mr Currie and Dr Clark ([11] of Mr Roddy’s first affidavit, [9] of Mr Currie’s affidavit and [11] of Dr Clark’s affidavit).
4)Following that telephone conversation, Mr Roddy and his family were flown to Australia for the purpose of Mr and Mrs Roddy being interviewed by SAH. Their travel to, and accommodation in, Australia was paid for by SAH ([12] of Mr Roddy’s first affidavit and [16] of Mr Clark’s affidavit).
5)While in Australia, on or about 21 and 22 October 2008, Mr Roddy was interviewed by, and met, various persons at SAH. Those staff included Ms Lee, Mr Currie, Dr Clark, Ms Duffy, Ms Behrens and Mr Jacovak ([11] of Ms Lee’s affidavit, [15] – [16] of Mr Currie’s affidavit, [17] of Dr Clark’s affidavit, [4] of the affidavit of Ms Julie Marion Behrens and [14], [16] – [19] of Mr Roddy’s first affidavit and [19] – [20], [24] and [28] – [30] of Mr Roddy’s second affidavit ).
6)On 23 October 2008 Mr Roddy was offered, by Dr Clark and Mr Currie, “permanent full-time employment” at SAH as a “project officer” ([20] of Mr Roddy’s first affidavit and [18] of Mr Currie’s affidavit).
7)By email on 17 December 2008, a formal letter of offer was sent to Mr Roddy. The remuneration package for the offered position, “project officer”, was $120,000.00 (annexure “MJL – 5” to the affidavit of Ms Lee).
8)Mr Roddy accepted SAH’s offer of employment by signing the contract of employment ([31] of Mr Currie’s affidavit and annexure “MJL – 6” to the affidavit of Ms Lee).
9)Mr Roddy commenced employment with SAH on 19 January 2009 ([29] of Mr Roddy’s first affidavit, [28] of Ms Lee’s affidavit, and [32] of Mr Currie’s affidavit).
10)He remained employed with SAH from that date until early May 2011 ([84] of Mr Currie’s affidavit). [The role that he was employed in, and when any alleged change in that role occurred, was the subject of dispute between the parties.]
11)On 18 April 2011, Mr Roddy attended a meeting with Mr Currie and Dr Clark in which he was advised that his position was being made redundant ([47] of Mr Roddy’s first affidavit, [69] of Mr Currie’s affidavit and [34] of Dr Clark’s affidavit).
12)On 16 May 2011, Mr Roddy’s position was made redundant ([31] of Ms Lee’s affidavit and [84] – [85] of Mr Currie’s affidavit).
The Relevant Incidents
1. Mr Roddy’s Email to SAH Regarding Employment at the Hospital
On 8 October 2008, Mr Roddy sent an email to SAH regarding employment at the hospital (annexure “MJL – 1” to Ms Lee’s affidavit). In that email he requested “information on how to apply” and attached his resume.
The applicant’s evidence was that that inquiry was made in relation to an advertisement on the hospital’s website for a “project engineer” ([10] of Mr Roddy’s first affidavit). In cross-examination Mr Roddy confirmed that, although his email did not make reference to a specific position, it had been sent in relation to an advertisement on SAH’s website for a “project engineer”. Mr Roddy later stated that that email to SAH was prompted by various vacancies advertised on their website which “perked” his interest (not necessarily the specific position of project engineer). However, he also continued to maintain that the position of project engineer had been advertised on SAH’s website and that his email was sent in response, and in relation, to that specific position.
The respondent’s evidence was that, at the time of Mr Roddy’s email, no “relevant” position, was advertised on the hospital’s website ([11] of Dr Clark’s affidavit and [5] of Mr Currie’s affidavit). Further, Ms Lee’s reply to Mr Roddy’s email inquiry as to employment opportunities, dated 10 October 2008, stated “…currently we do not have a vacancy that is suitable for you” (annexure “MJL – 3” to Ms Lee’s affidavit).
2. The Telephone Conversation Between Mr Roddy, Mr Currie and Dr Clark in early-October 2008
In early-October 2008, following receipt of Mr Roddy’s email, a telephone conversation occurred between Mr Roddy, Dr Clark and Mr Currie. Before the Court, that conversation was accepted by all as, essentially, a “meet and greet”.
The evidence of the parties varied as to whether the conversation occurred on 14 or 16 October 2008. The applicant’s evidence was that the conversation occurred on 14 October 2008 ([11] of Mr Roddy’s first affidavit). The respondent asserted that that conversation took place on 16 October 2008 ([9] of Mr Currie’s affidavit, [11] of Dr Clark’s affidavit and annexure “MJL – 3” of Ms Lee’s affidavit).
Regardless of the date of that conversation, Mr Roddy’s initial evidence was that Dr Clarke had stated words to the effect that the hospital was “…offering long term permanent employment” (at [11] of Mr Roddy’s first affidavit). However, before the Court, he amended his evidence. That telephone conversation was said to be an introduction between the parties and that it had consisted of general statements, as opposed to specific promises, of what might happen in the future. Further, that no offer of employment had been made at that time. Somewhat in contradiction to his argument or submissions before the Court, his evidence was that he had not acted in reliance on the statements made at that meeting (except in so far as flying to Australia from the United States, with his family, for a formal interview). Despite that, Mr Roddy nonetheless maintained before the Court that words to the effect that the hospital was offering long term secure employment had been said during that telephone conversation.
Dr Clark and Mr Currie agreed that the telephone conversation was a “general discussion” ([12] of Dr Clark’s affidavit) and that no offer of employment was made at that time ([13] – [14] of Dr Clark’s affidavit and [11] of Mr Currie’s affidavit). Further, that during that telephone conversation Mr Roddy had indicated that he and his wife were planning on moving to Australia ([10] of Mr Currie’s affidavit). That evidence was confirmed by both Mr Currie and Dr Clark before the Court.
3. The Interviews and Conversations Between Mr Roddy and Various SAH Personnel on 21 and 22 October 2008
Although the applicant’s statement of claim provided, in its particulars, that the misleading and/or deceptive statements were made by Mr Currie and Dr Clark, before the Court the applicant sought to extend that claim to the statements made by all SAH employees whom he had met in October 2008. That is, the applicant sought to extend his complaint to include representations he said were made by Ms Lee, Ms Behrens, Ms Duffy and Mr Jacovak in October 2008.
That attempted expansion of the applicant’s claim is addressed later in the judgment. However, for the sake of completeness, the evidence of all conversations that could be said to be part of the applicant’s claim are set out below.
Mr Roddy, his wife and children were flown out to Sydney by SAH following his “positive” telephone “meet and greet” with Dr Clark and Mr Currie.
Mr Roddy and his family arrived in Australia on 21 October 2008 and Mr Roddy met Dr Clark and Mr Currie on that day ([14] of Mr Roddy’s first affidavit, [17] of Dr Clark’s affidavit and [15] of Mr Currie’s affidavit).
It was Mr Roddy’s evidence that, during that conversation, Dr Clark spoke about schools in the area for his daughters (at that time aged 2 years old and 2 months old) and the local church community ([15] of Mr Roddy’s first affidavit). Dr Clark had “no clear recollection” of what was said in that conversation, although he remembered that it had taken place ([17] of his affidavit). Mr Currie gave no evidence as to the content of that conversation.
On 22 October 2008 Mr Roddy met several other employees of SAH. The following meetings (whether conversations or interviews) were said to have taken place on 22 October 2008
1)Between Mr Roddy, Dr Clark and Mr Currie
i)The applicant’s evidence was that, at a meeting with Dr Clark and Mr Currie on the morning of 22 October 2008, he had indicated that, in “a few years time”, he would like to hold a high position in the hospital. Specifically, Chief Operating Officer (“COO”) or Chief Executive Officer (“CEO”). It was Mr Roddy’s evidence that, in response to that statement, Dr Clark had indicated that the hospital had succession planning and would give him every opportunity to “ascend to those heights” ([16] of Mr Roddy’s first affidavit). In addition, that Mr Currie had said that the people who would be interviewing him were “examples of SAH’s succession planning and growth” ([30] of Mr Roddy’s second affidavit).
ii)It was also Mr Roddy’s evidence that, at that meeting, both Dr Clark and Mr Currie had outlined their own career progression within SAH and had told him that he could “do the same thing” ([24] and [29] of Mr Roddy’s second affidavit).
iii)Before the Court, Dr Clark denied having made those statements. Further, Dr Clark did not recall, nor did he have any record of, having participated in a “face to face interview” with Mr Roddy ([18] of his affidavit).
iv)It was Mr Currie’s evidence that he had been present at a meeting with Mr Roddy on 22 October 2008 and that, at that meeting, and in response to him posing the question “where do you see yourself in the future?”, Mr Roddy had responded “In one of your roles” ([16] of his affidavit). Further, although he recollected having described his career with SAH, in examination-in-chief, Mr Currie denied having told Mr Roddy that he could “do the same thing”. Further, he had no recollection of how, or by whom, Mr Roddy’s interviews with SAH employees were organised.
2)Between Mr Roddy and Ms Lee
i)Mr Roddy’s evidence was that in his “interview” with Ms Lee, on 22 October 2008, she had talked of both her and Mr Currie’s career progression at the hospital and told him, variously, that his could “be the same story”, and that he “could do the same thing” ([17] of Mr Roddy’s first affidavit and [28] of his second affidavit).
ii)Ms Lee’s oral evidence was that she had not conducted an “interview” with Mr Roddy. Rather, she gave evidence that she had a conversation with him on 22 October 2008 while she was walking with him to meet Mr Jacovak, another SAH employee. During that conversation, she had told him that she had held a number of different roles at SAH ([11] of her affidavit). She had not told him that his could “be the same story” ([11] of her affidavit), nor that he could “do the same thing”.
3)Between Mr Roddy and Mr Bernard Jacovak
i)The applicant’s evidence is that he met Mr Jacovak, the hospital’s engineer, on 22 October 2008. In that meeting, Mr Jacovak told him that he would be managing “… the refurbishment of the medical centre and the fitout of the day infusion centre to start with” ([18] of Mr Roddy’s first affidavit).
ii)No evidence was led by the respondent in relation to that meeting. [There was no affidavit by Mr Jacovak.]
iii)I note that in Mr Roddy’s first affidavit, and in written submission, references were made to Mr Jacovak. The respondent’s written submissions made reference to Mr Jakovac. For ease, the spelling utilised by the applicant has been adopted for the purposes of this judgment, noting that most references to Mr Jacovak are in the applicant’s evidence.
4)Between Mr Roddy and Ms Julie Behrens
i)On the afternoon of 22 October 2008, Mr Roddy met Ms Behrens. Mr Roddy’s evidence was that at that interview Ms Behrens told him of her and Mr Currie’s career progression and that there were “opportunities for advancement” at SAH ([19] of Mr Roddy’s first affidavit). Further, that in relation to her career progression at SAH, he could “do the same thing” ([20] of Mr Roddy’s second affidavit).
ii)Ms Behrens' evidence before the Court was that, although not sure of the date, she had met Mr Roddy. In that meeting she had described her various roles at the hospital and indicated that she enjoyed working for SAH ([4] of her affidavit). She denied having said to Mr Roddy “you can do the same thing”. Nor had she said words to a similar effect.
5)Between Mr Roddy and Ms Duffy
i)Although not mentioned in his first affidavit, Mr Roddy’s evidence ultimately was that, on 22 October 2008, he had an interview with Ms Duffy and she had told him of her career progression at SAH and told him “you can do the same thing” ([19] of Mr Roddy’s second affidavit).
ii)Before the Court, Ms Duffy agreed that it was “possible in the context” that she had said the words “you can do the same thing”, but that she could not “exactly remember saying” that phrase.
4. The Offer of Employment Made by SAH
On 23 October 2008, Mr Roddy met Mr Currie and Dr Clark. At that meeting an offer of employment as “project officer” at SAH was made to Mr Roddy ([20] of Mr Roddy’s first affidavit and [18] of Mr Currie’s affidavit).
It was the applicant’s evidence that Dr Clark said that the offer was for “a permanent long term placement” ([20] of Mr Roddy’s first affidavit). Further, that Mr Currie reiterated the hospital’s commitment to succession planning and pointed to his own experiences as an example of that ([20] of Mr Roddy’s first affidavit). Further, in response to his statement that he could not “afford to leave a good job in the USA if it’s not a sure thing”, Mr Roddy’s evidence was that Dr Clark had said: “I completely understand”.
Before the Court, and in addition, Mr Roddy’s evidence was that he had been told that the type of work he would be undertaking and overseeing in the position of project officer would be constant and that there were projects that would always require management.
The respondent’s evidence was that an offer of employment had been made to Mr Roddy on 23 October 2008 and, while that offer was for a permanent full-time position, it was not an offer to employ Mr Roddy permanently. Further, neither Mr Currie, nor Dr Clark, recollected Mr Roddy seeking assurance of secure employment ([19] of both their affidavits)
Rather, Mr Currie’s recollection of that conversation was that Mr Roddy was concerned that both he and his wife required employment in Australia and, as a result, he could not make a decision at that time regarding his own employment ([18] – [19] of his affidavit).
Dr Clark’s evidence was that he had not used the phrases “long term commitment” or “long term placement” when making that offer of employment ([19] of his affidavit). However, in cross-examination, his evidence was that he did not “have a specific recollection” of the conversation.
5. Mr Roddy’s Acceptance of SAH’s Offer of Employment
A copy of that employment offer and contract was subsequently emailed to Mr Roddy on 17 December 2008 (Annexure “MJL – 5” to Ms Lee’s affidavit). That offer and contract were read, and ultimately signed, by Mr Roddy [see further below as to the date on which that occurred]. Within that contract were provisions that allowed for Mr Roddy’s employment to be terminated with one weeks notice in the first six months of employment and that, after the expiration of that six month period, his employment could be terminated with one month’s notice.
Mr Roddy’s evidence initially, as per his affidavit, was that he had read, signed and returned that offer on the day it was emailed to him. That is, on 17 December 2008 ([23] – [24] of his first affidavit). However, before the Court, Mr Roddy ultimately said that he had not signed and returned that contract until 6 or 7 January 2009 (see also annexure “MJL – 6” of Ms Lee’s affidavit).
In addition, before the Court, Mr Roddy gave evidence that, as at the end of November 2008, his wife had received an offer of employment for a position in Sydney. Despite their respective offers of employment in Sydney he had not accepted SAH’s offer of employment. In
cross-examination, Mr Roddy gave evidence that, instead, he had considered other employment options in Australia, specifically in Melbourne.
6. The Discussion between Mr Roddy and Mr Currie in March 2009 Regarding the Position of Project Management Office (“PMO”) Manager
It was the applicant’s evidence that, on or about 1 March 2009, he met Mr Currie who offered him a “new job” as Manager of the PMO. He was told that, in that role, he would have Mr Derek Mapoli and Mr Mark Mudge under his direction ([31] of his first affidavit). Mr Roddy’s evidence was that he had accepted that offer at that time, that no written contract of employment was entered into, and that his remuneration in that role increased to $132,000 ([31] – [33] of his first affidavit).
The respondent contended that the PMO had not yet been created in March 2009. Rather, it did not eventuate until May 2010 and, only at that time, had Mr Roddy been offered, and accepted, the role of PMO Manager ([35] of Mr Currie’s affidavit). It was the respondent’s evidence that Mr Roddy had been requested, in February or March 2009, to “take the lead” on development works in relation to the hospital’s major project ([34] of Mr Currie’s affidavit). Further, Mr Roddy had not received a pay rise, as such, at that time. Rather, on 7 July 2009, his income was increased as part of the hospital’s “annual wage review” ([29] of Ms Lee’s affidavit and annexure “MJL-7” to that affidavit)
Before the Court, Mr Roddy gave evidence that the relevant conversation set out in his affidavit was only the first of several similar conversations that “showed a progression in my role which came to be formalised officially … in March 2010”. However, in
cross-examination, he maintained that Mr Currie’s offer in March 2009 was for a new job, not simply new responsibilities in his existing role of project officer. Further, before the Court, Mr Roddy maintained that he had accepted that new position at that time.
In relation to his remuneration package, in cross-examination, Mr Roddy maintained that, in that new position, he had received a pay rise and that that pay rise was in recognition of his advancement, and further, reflected the change in seniority that he alleged occurred on 1 March 2009.
However, later in cross-examination, Mr Roddy conceded that it was not until later in the year, in or about July 2009, that he received that pay rise. Further that that pay rise was equivalent to 4.1% of his salary and, as such, his remuneration package in July 2009 could not have been $132,000 (as that required a 10% pay rise – 10% of $120,000 being $12,000).
7. The Redundancy of the Position of Project Management Officer Manager
On 18 April 2011, Mr Roddy attended a meeting with Mr Currie and Dr Clark in which he was advised that his position was being made redundant ([47] of Mr Roddy’s first affidavit, [69] of Mr Currie’s affidavit and [34] of Dr Clark’s affidavit).
On 16 May 2011, Mr Roddy’s position was made redundant ([31] of Ms Lee’s affidavit and [84] of Mr Currie’s affidavit).
It was the respondent’s evidence that, following being told that his position was being made redundant, Mr Roddy was provided with information in relation to “Outplacement Services” ([32] – [33] of Ms Lee’s affidavit and annexures “MJL – 8” and “MJL – 9” to that affidavit). In particular, SAH offered to pay for “eight hours of one on one coaching” with a recruitment company based in Newcastle and the Central Coast (Annexure “MJL – 8” to Ms Lee’s affidavit).
Further, that although Mr Roddy’s position was made redundant, on 29 April 2011 and 2 May 2011 he was offered several options, including a position three days a week at the hospital in which he would be paid his existing hourly rate (annexures “PDC – 12” and “PDC-13” to Mr Currie’s affidavit). Mr Roddy failed to make any election for any option and, in light of that, he was made redundant, effective as of 16 May 2011 (annexures “PDC – 16” and “PDC – 17” to Mr Currie’s affidavit). That date was allegedly determined in accordance with Mr Roddy’s “employment letter” which provided for one month’s notice (annexure “PDC -13” to Mr Currie’s affidavit).
In cross-examination, Mr Roddy confirmed that he had not taken up SAH’s offer of continuing employment. Further, that at that time Mr McArdle (his current solicitor) was engaged by him to communicate with SAH.
Consideration: The Misleading and Deceptive Conduct Complaint
There are several elements that must be determined in relation to the applicant’s first complaint. That is, his complaint made under the ACL. In this regard, direction for matters of this type was set out by Flick J in Robertson v Knott Investment Pty Ltd(No.3) [2010] FCA 1074 at [12] – [19]. However, for the reasons given below, not all are relevant to the disposition of this case. However, the following are relevant to the current circumstances although, given the reasoning as to (1) below, it is unnecessary to proceed to the others in any detail:
1)Where the representations made by the individuals alleged by the applicant to have made them on behalf of SAH?
2)If the representations were made, when viewed objectively, were those representations liable to mislead Mr Roddy as to the availability, nature, terms or conditions, or another matter, in relation to the employment proposed by SAH?
3)Further, if the representations were made, did SAH, or more specifically the individuals alleged to have made the representations, have reasonable grounds for making them?
4)If the representations were made, did the applicant rely upon the alleged representations?
5)If the representations were made, and were misleading, did the applicant suffer loss or damage because the representations were misleading?
Before the Court can turn its mind to the above matters and determine whether they have been made out, it is necessary given the piecemeal and evolutionary presentation of the applicant’s case, that the Court first determine the scope of that case.
The Applicant’s Case as Pleaded, and as Presented
Before the Court, and in written submissions, the applicant attempted to expand his complaint beyond that pleaded and particularised in his statement of claim and, further, to what is set out at [18] – [22] above. The respondent objected to that expansion and sought that the applicant’s case be confined to its pleadings.
The respondent, variously, alleged that the applicant’s case had expanded beyond the pleadings in four aspects. Those alleged expansions were said to be:
1)The alleged failure by the respondent to alert the applicant to the requirement that his employment, and career progression, at the hospital was dependent on him conforming to SAH’s communication style.
2)Exactly who made the alleged representations to the applicant?
3)The nature, or subject, of those representations.
4)That the applicant was “enthusiastically” recruited by SAH and, as a result of that recruitment, acted in reliance on the representations allegedly made by various SAH employees.
Although not all were ultimately pressed by the applicant, for the sake of completeness, each of the “expansions” is dealt with below. A number of matters require further note.
Failure to Alert the Applicant to a Requirement of His Employment
First, before the Court the applicant attempted to develop an argument, although not pleaded in his statement of claim, that SAH had engaged in misleading and deceptive conduct by not alerting him to the fact that his career progression was contingent on him conforming to a certain communication “style”. That is, SAH’s silence as to this matter was misleading and deceptive.
The amended statement of claim that the applicant sought leave to file at the start of the hearing sought to amend the statement of claim so that this additional complaint could be pleaded. That request for leave was refused (see [21] – [22] above). Despite that request being refused (and the respondent’s objection to the proposed amendment), the applicant continued to develop the argument in opening submissions. Ultimately, however, in light of the applicant’s closing oral and written submissions, I understood that claim not to be pressed.
Who Made the Representations
Second, it was alleged by the respondent that the applicant’s case appeared to “meander” from that particularised in his statement of claim to extend his complaint as to which SAH employees had made the allegedly misleading representations.
The applicant’s statement of claim particularised those alleged representations as having been made by Mr Currie and Dr Clark in conversations with the applicant in October 2008. However, before the Court, and in submissions, the applicant alleged that those representations had arisen from “the entire conduct of the SAH”. That is, that those representations had been made not only by Mr Currie and Dr Clark, but also Ms Lee, Ms Behrens, Mr Jacovak and Ms Duffy.
In closing written submissions in reply, the applicant asserted that the case advanced “was within the four corners of the pleadings of the statement of claim” ([2](a)). No further specificity was provided in support of that contention in written submissions.
Before the Court, the applicant asserted that his case came within the “four corners” of the pleaded case as the representations made by employees other than Mr Currie and Dr Clark were still made on behalf of the respondent. That is, that the applicant’s statement of claim pleaded that “the respondent represented to the applicant” ([6] of the statement of claim). I understood the implication of that submission to be, therefore, that that included in the pleadings the representations, statements and conduct of the other SAH employees.
It was the applicant’s submission that, although that claim was expressly particularised as being “conversations between Phil Currie, Leon Clark and the applicant during the interview process held in Sydney in October 2008”, the applicant was not constrained by those particulars. Ms Chan submitted that, while the purpose of pleadings was to allow the respondent to know the case it was to meet, the particulars did not constitute a part of the pleadings. It was the applicant’s position that the purpose of particulars was to “elaborate” on the case the respondent was required to answer. That is, that the pleaded facts constrained the case, but that the particulars did not.
In response, the respondent submitted that, were the Court to allow the applicant to broaden his attack beyond that particularised in his statement of claim, the respondent would be disadvantaged. That disadvantage was said to arise from, first, the respondent being unaware of the case that it was required to answer and, second, denied the opportunity to adduce evidence in response to that case. In particular, if the applicant sought to rely on the representations made by employees of SAH other than Mr Currie and Dr Clark the respondent would have sought to adduce evidence to show that, if made (which the respondent denied), Mr Roddy did not act in reliance on any of those representations and that the makers had reasonable grounds for making the representations.
The respondent conceded that the particulars of the statement of claim did not constrain (relevantly) the evidence that the applicant could give. However, they did constrain the case to that the applicant was allowed to advance and that the respondent was required to answer. Particularly when, as in the current case, if the particulars were ignored the applicant’s claim could only be said to be that someone, on behalf of SAH, at some point in time, made representations to the applicant.
The respondent’s position is that, given the evidence, if the applicant had wished to rely on the alleged representations made by other SAH employees then the applicant could have, and should have, sought leave to amend his statement of claim to reflect that. No such application was made at the appropriate time or, essentially, before the hearing. In those circumstances, the respondent submitted that the applicant could not, ultimately at the “end of the hearing”, then seek to explicitly raise and rely on a case that had not been pleaded or particularised. Particularly in circumstances where to do so would disadvantage the respondent.
It is the case that this Court is intended to operate in a manner that is “as informal as possible” (r.1.03 of the Federal Magistrates Court Rules 2001 (Cth) (“FMC Rules”)). In light of that, and consistent with the FMC Rules and Federal Magistrates Court Act 1999 (Cth) (“the FMC Act”), the Court has, as stated by Lander J in Rana v University of South Australia [2004] FCA 559 (“Rana”) at [37], “abandoned pleadings in favour of affidavits… and abandoned the formal procedures of superior courts”.
While the FMC Rules do not require pleadings (Buckingham v KSN Engineering Pty Ltd & Anor [2008] FMCA 546; (2008) 177 ILR 427 at [16]), the Court can make orders, as occurred in the current case, that provide for the matter to proceed by way of pleadings. In those circumstances, pleadings are subject to the requirement to provide particulars (Verge & Anor v Devere Holdings Pty Ltd & Ors [2008] FMCA 591 (“Verge (No.1) at [19] per Lucev FM and Verge & Anor v Devere Holdings Pty Ltd & Ors (No.4) [2008] FMCA 1421 (“Verge (No.4)”) at [22]).
The function of particulars is to enable the respondent to know the material facts relied upon by the applicant, to properly prepare a brief, and not to be taken by surprise (Verge (No.4) at [22] citing Verge (No.1) at [20] and Dare v Pulham [1982] HCA 70; (1982) 148 CLR 658 at [6] per Murphy, Wilson, Brennan, Deane and Dawson JJ and Rana at [36]).
Particulars may be amended after the evidence in a trial (Dare at [6] and Mummery v Irvings Pty Ltd [1956] HCA 45; (1956) 96 CLR 99 at 111 – 112, 127) and a failure to amend them will not preclude an applicant “… from seeking a verdict on the cause of action alleged in reliance upon the facts actually established by the evidence” (Leotta v Public Transport Commission(N.S.W.) (1976) ALR 437; (1976) 50 ALJR 666 (“Leotta”) and Rana at [6]).
As a result, the applicant’s failure to particularise that he relied on the representations made by SAH employees other than just Mr Currie and Dr Clark is not fatal to his claim now before the Court. What is, however, is that the respondent was not aware of that claim and was therefore was not afforded a reasonable opportunity to respond. That is, SAH was not afforded procedural fairness by the conduct of the applicant before the Court. Particularly, the respondent was denied the opportunity to lead evidence at the trial in relation to the applicant’s claim as against the other SAH employees (Sterling Silver v Iliff [2008] FCA 702 at [23] – [24] per Gordon J).
The applicant’s claim in relation to the SAH employees other than Mr Currie and Dr Clark was not particularised in his statement of claim. Nor was it raised in his initial written submissions to the Court filed prior to the hearing. Rather, those submissions, while mentioning the applicant’s “interviews” with the other SAH employees in October 2008 ([7] – [8] of his initial written submissions), reiterate the applicant’s claim that he acted “… in reliance upon the representations made to [him] by Mr Currie and Dr Clark in the meetings in Sydney in October 2008 …” ([12] of his initial written submissions).
Nor, it must be said, were the applicant’s submissions made in such a fashion that a level of satisfaction could be reached that a coherent or cogent argument could be developed based on this evidence beyond mere assertion. Those submissions, in effect, sought to add the claimed conduct and statements attributed to four other persons, without any acknowledgment that such an addition, if allowed, introduced a much wider factual view, with different relevant iterations, to that originally proposed. Nor was the argument, as it related to these others, linked in any satisfactory way to whatever authority such persons possessed such as to have acted, in any capacity, on behalf of SAH such to have been representative of the respondent’s position. Dr Clark and Mr Currie plainly spoke with that authority as the senior management of SAH.
The utility, therefore, in allowing the applicant to proceed with, and rely on, such submissions comes into consideration. Particularly in circumstances where such enlargement of the scope of the applicant’s case, albeit proceeding it appears largely from the evidence already given, can only involve a further protraction of these proceedings without a probative basis for the protraction and expansion having been revealed.
This is not directly a case as in, say for example Aon Risk Services Australia Limited v Australian National University [2009] HCA 2 (“Aon Risk”), where proceeding were extended and lengthened in circumstances where, amongst other things, one of the parties sought to argue a position different to that initially put and prosecuted for some time.
However the guiding principles and direction provided by the
High Court is Aon Risk is instructive. In the current case, it was always open on the material, and subsequently evidence, available to the applicant for him to have argued the case he now seeks to argue or, from the beginning and even at some suitable earlier time, to have argued his case in the way he attempted to do so at the hearing and in closing submissions.While it is the case, as set out above, that an applicant may indeed seek a verdict on facts established by the evidence without formal amendment to particulars (for example, Leotta), I do not respectfully understand such authority to give license to, after all the evidence in the case has been given, then widen, nor certainly alter, the scope of the case when the availability of that evidence was already known prior to the commencement of the hearing.
I respectfully understand such authorities to be in recognition of the vagaries of litigation and that one of the consequences of the testing of evidence before the Court is that new insights, facts, and the understanding of facts, can, and often do, emerge. In those circumstances, parties should not be denied the opportunity to rely on those developments because of some “formal” or restrictive approach to the amendment of particulars.
However, this is not such a case. What the applicant appears to seek to rely on in closing submissions is, in essence, nothing that was not available to him to have signalled at a much earlier time. Nor was any satisfactory explanation proffered by the applicant for his failure to have done so at an earlier stage.
I do not respectfully see relevant authorities, which allow reliance on the facts subsequently established by the evidence, to give license in closing submissions to enlarge, or substantially change, the case put forward earlier. Especially in circumstances where such change, or enlargement, was obviously available at a much earlier time. In my respectful view, it is this characteristic which brings this case within the general direction provided by the High Court in Aon Risk.
Therefore, the fact that the various conversations are referred to in the applicant’s initial written submissions, and his affidavits, reveals that those conversations (be them interviews or not) were known to him prior to the hearing. They did not arise from the evidence at the hearing. In those circumstances, they should have been advanced in the applicant’s statement of claim, or that document should have been amended prior to the hearing to reflect the applicant’s claims as now put forward in his closing written submissions.
In light of the above, and the denial of procedural fairness to the respondent that would result from allowing the applicant to now argue the case presented in his closing submissions, the applicant’s case is restricted to that particularised in his statement of claim and presented in his opening written submissions. That is, the applicant’s case will be assessed in terms of whether the respondent, through Mr Currie and Dr Clark, made misleading representations to the applicant in October 2008. The subject of those representations will be examined below. In any event, even if leave had been granted to the applicant in this regard, it would not have assisted his case (see further below at [118] ff).
The Subject of the Representations
Third, the applicant’s closing submissions sought to reformulate not only who had made the representations, but also the subject of those representations. The applicant’s statement of claim asserted that “the employment representations” (referred to hereafter as the “pleaded representations”) related to four matters ([6] of the applicant’s statement of claim):
“(1) the respondent saw the applicant as fitting into the long-term succession plan of the hospital;
(2) the respondent saw the applicant as a potential candidate for the chief operating officer or chief executive officer role with the respondent;;
(3) the respondent would give the applicant every opportunity so that he might be promoted to become a part of a senior management within the respondent; and
(4) the applicant would have long term and permanent employment with the respondent.”
However, in closing submissions to the Court the applicant asserted that the representations made by SAH (referred to by the applicant, and hereafter in the judgment, as the “October representations”) were as follows ([31] of the applicant’s closing submissions):
“a. he was being offered a long term permanent position in that the contract was not a short term fixed contract;
b. there would always be a job for him at the SAH as there were many projects that the applicant could work on;
c. there were as plenty of opportunities for advancement;
d. that the applicant could follow the same career progression that Ms Duffy, Ms Behrens, Ms Lee, Mr Currie and Dr Clark had enjoyed;
e. SAH would give the applicant and his family on-going support and security of employment for the long tem;
f. The applicant would be included in the succession planning of SAH”
The applicant, in written submissions, acknowledged that “the pleaded representations are a subset of the October representations” ([68] for the applicant’s written submissions) [Emphasis in the original.]. That is, that the representations as set out in the closing submissions (the “October representations”) are broader than, and encompass, the pleaded representations (see the applicant’s statement of claim at [6]). Further, the applicant did not submit that the second pleaded representation, that SAH saw Mr Roddy as a potential candidate for CEO or COO of the hospital, had been made out ([68] of the applicant’s written submissions).
The respondent submitted that the applicant’s reliance on the “October representations”, which were wider than the pleaded representations, revealed that the pleaded representations were not, on their own, the “real inducement” for the applicant’s actions. As such, the respondent submitted that the applicant’s claim as pleaded, that is, that he was induced to accept SAH’s offer of employment because of the pleaded representations, must fail.
I note that, unlike the expansion of the SAH employees alleged to have made the representation, the broader “October Representations” are, to some extent, set out in the applicant’s opening submissions. In particular, [13] of his initial written submissions provides that:
“The representations relied upon by the applicant were:
a. The employment would be on a permanent full time basis;
b. The employment would be for the long term;
c. Work would be made available to the applicant for the long term;
d. SAH would give the applicant his family on-going support and security of employment for the long term;
e. There would be work available in the long term for continued employment with SAH;
f. The applicant would be included in the succession planning of SAH; and
g. The applicant would be given opportunities to progress and advance in the long term throughout the applicant’s working life with SAH.”
Those alleged representations (in the applicant’s initial written submissions) refer to [25] of the applicant’s first affidavit, where they are, also, set out.
In those circumstances, an argument can be advanced that the respondent was on notice that the representations relied upon by the applicant were broader than those particularised in the statement of claim.
However, in circumstances where the applicant did not seek to utilise the liberty granted to amend his statement of claim at some earlier time, nor did he explicitly alert the Court and the respondent to this widening of his claim [that is, until the explicit recognition of it in his closing written submissions], for the same reasons as set out above, in relation to the claimed persons who made the representations, the applicant’s case will be confined to those representations pleaded in his statement of claim. In particular, those representations constitute part of the pleadings and, without amendment to the statement of claim, the respondent would be caught unawares of the case against them, notwithstanding that some mention of them was made in evidence.
“Enthusiastic” Recruitment of the Applicant
Finally, in closing submissions before the Court, the applicant asserted that SAH had “enthusiastically” recruited him. That claim was raised in relation to the applicant signing the offer of employment made by SAH despite that offer making provision for the termination of his employment. It was the applicant’s submission that this “enthusiastic” recruitment was part of the context in which the Court had to determine whether the applicant had relied upon the representations allegedly made by the respondent.
However, it was never explained by the applicant how the assertion, that is, that his recruitment by SAH was “enthusiastic”, assisted him. Further, just what was meant by “enthusiastic” recruitment was never satisfactorily explained. If it was meant as some colourful description of SAH’s action in paying for Mr Roddy and his family to fly to Australia, then that does not really add to the substance of the representations alleged to have been made, let alone that they were misleading.
While the applicant submitted that the nature of Mr Roddy’s recruitment gave a “flavour and context” to the representations made to him, and was part of the factual matrix, his counsel also went on to state that the word “enthusiastic” was not critical to the applicant’s submissions, nor his case. It must be said that, at its highest, I saw this description as some excess in submissions. The consequence of making this reference did not appear, on what was subsequently put, to have been thought through. In any event, when pressed, the applicant’s enthusiasm for the description appeared to wane.
The respondent submitted that the applicant’s assertion that he was “enthusiastically” recruited appeared to be a new element of his case. That is, that the applicant, perhaps, relied on that “enthusiastic” recruitment process to disregard the terms of the contract. Given that that element of reliance had not been pleaded, nor proved, the respondent submitted that the Court should disregard it.
As it was raised for the first time in closing oral submissions to the Court (having been neither pleaded in the statement of claim, nor developed during the course of the hearing), and that the applicant was unable to satisfactorily articulate its import to his case, it was appropriate that this claim not be considered further.
The “Evidence” as seen per the Applicant’s Closing Submissions
It is of note that the oral and affidavit “evidence” before the Court as set out in the applicant’s closing written submissions, contained a number of errors and omissions. While some allowance can be made by the Court for minor typographical mistakes or error (as, for example, in the respondent’s written submissions), the deficiencies in the applicant’s closing submissions went beyond that which is acceptable. Those deficiencies were, in part, commented on by the respondent in closing submissions (see [138] of the respondent’s closing written submissions). In particular, and for example, I note the following:
1)At [25] the applicant describes Ms Behren’s evidence before the Court as being that she “… could not be sure whether she had said to the applicant that he too could enjoy the same career progression.” However, and as identified by the respondent (see [138](c) of the respondent’s closing written submissions), Ms Behren’s evidence before the Court was that she did not say that Mr Roddy could experience the same career progression.
2)At [27] the applicant records his own evidence (with reference to [18] of his first affidavit) as being that Mr Jacovak, in response to his question “whether he could expect the job to be a long-term placement”, had told him “that it was”. However, when regard is had to Mr Roddy’s first affidavit, the applicant’s evidence is as follows:
“At about 1.00pm on the same day, I met with Mr Bernard Jacovak, Hospital Engineer for the Respondent. A conversation took place with words to the effect of:
Mr Jacovak said: ‘I manage Derek Mapoli. You and he will be project officers and there are many opportunities here. There are lots of projects to work on because we have several of the building that we still operate out which are inherently very old and to keep up the standard they need ongoing upgrading and refurbishment.’
I said:‘What sort of projects would I be taking on?”
Mr Jacovak said: ‘Well, there’s the refurbishment of the medical centre and the fit out of the day infusion centre to start with.’
As submitted by the respondent (at [138](e) of its closing submissions), the subsequent “description of the applicant’s evidence is wrong.”
3)At [41] of closing submissions, the applicant provides that his remuneration in the new role of PMO Manager was $132,000 per annum. Further, at [96] of closing submissions, the applicant states that he was given a pay rise of $10,000 upon appointment to the new position (that is, his salary increased to $130,000). However, and as submitted by the respondent ([138](g) of closing submissions), those statements are at odds with the applicant’s evidence in cross-examination. In cross-examination, the applicant’s evidence was, ultimately, that his pay had increased by 4.1% (that is, that the increase in, all the circumstances, had been less than $10,000 and that his salary in the role of PMO Manager was not $132,000). [I note that the applicant’s evidence initially was that his salary increased to $132,000. That is, in context, an increase of $12,000. In closing written submissions, the applicant asserted that his salary had increased by $10,000. This inconsistency was not explained.]
These are just three examples, and are by no means exhaustive, of the types of errors, it could be said misrepresentations, in the applicant’s closing written submissions. In these circumstances, care has been taken by the Court in relying on, and confirming the accuracy of, the applicant’s closing written submissions.
Were the Representations Made?
In essence the applicant’s position as to whether the representations were made is that he asserts that they were, he is more credible than those witnesses who say that they were not and, therefore, his evidence that the representations were made is to be relied upon to find that they were in fact made.
It must be said that no real attempt beyond this was made by the applicant to address any of the relevant detail in any substantial way or to, for example, analyse the evidence such that the Court could be assisted as to the likelihood of whether the claimed representations were made and made in the way asserted by the applicant.
In submissions the applicant generally described the representations as being the “October Representations” and the “employment representations”. I have taken these descriptions, as did the respondent, in the circumstances presented (see [93] – [100] above) to refer to those matters particularised at [6] of the Statement of Claim (the “pleaded representations”):
“(1) the respondent saw the applicant as fitting into the long-term succession plan of the hospital;
(2) the respondent saw the applicant as a potential candidate for the chief operating officer or chief executive officer role with the respondent;
(3) the respondent would give the applicant every opportunity so that he might be promoted to become a part of a senior management within the respondent; and
(4) the applicant would have long term and permanent employment with the respondent.”
It is the case that, before the Court, the applicant presented in a confident and forthright manner. While some debate may be had about the claimed (by his counsel) “willing” concessions made by the applicant in cross-examination when confronted with difficulties, this is not determinative in the current circumstances.
That is because the applicant’s demeanour in the witness box is not a matter on which the resolution of this case turns. Those determinative factors relate to the actual evidence given by Mr Roddy when compared to, or understood in context of, other evidence before the Court. That is, rather than “how” that evidence was given.
In its written submissions, the respondent relevantly referred to the applicant as a “poor historian”. That is a colourful phrase which should not be encouraged, given that the pejorative connotation to it seeks to divert attention away from the actual evidence given by Mr Roddy. In any event, what sits behind that expression is the answer, in part, to the applicant’s claim that his evidence should be believed over, or preferred to, the respondent’s witnesses largely because of the way that he gave it and his, generally, “clear” recollection of relevant events and statements, albeit some years earlier.
While it is obviously important in the disposition of this case to focus on what each side alleges was relevantly said, what must also be borne in mind is that what is sometimes intended when speaking orally is not necessarily what the listener understands, or even hears.
This may explain any dissonance between the parties as to not necessarily what was actually said, but what was meant. The dissonance immediately below about long term succession planning at SAH fits this description as does, even more so, the discussion below concerning “permanent” employment.
Each of the applicant’s contentions as taken from the Statement of Claim (see above at [110]), will be addressed in turn below. However, before considering whether each of the pleaded representations was made, it is important to note the distinction between words uttered and representations made.
Mr Roddy alleges that SAH represented several things to him in the period leading up to him accepting employment with the respondent. It is alleged that those representations were made by SAH employees, specifically Mr Currie and Dr Clark, in various conversations in October 2008. It is important to note that while the applicant deposes to conversations said to have taken place between Mr Currie, Dr Clark and himself the representations allegedly made by SAH arise not simply from the words uttered by the various SAH employees, but also the conduct of SAH and what Mr Currie and Dr Clark represented (as oppose to simply uttered) in those conversations in October 2008.
In those circumstances, it is important to note that while, in some instances, I am satisfied that the conversation as deposed to by the applicant did take place, and that words similar to those alleged to have been said by Mr Currie and Dr Clark were uttered, it does not necessarily, nor automatically, follow that the utterance of those words meant that the pleaded representations were made as alleged.
Did the Respondent Represent That it Saw the Applicant as Fitting Into its Long Term Succession Plan?
In his statement of claim (at [6]), the applicant says SAH held out that he was seen as fitting into the long term succession plan of the hospital. The applicant pleads that this occurred during the “interview process”. The specific relevant statements attributed to Dr Clark and Mr Currie, dealt with below, carry, in the applicant’s presentation before the Court, a context from which the applicant, at least, draws his understanding of what was said.
The applicant’s evidence is that Mr Currie told him, on 22 October 2008, at a meeting at which Dr Clark was present, that: “We are always looking at succession planning”. Further, that Mr Currie said, on 23 October 2008, amongst other things, “I am a living example of SAH’s commitment to succession planning” (at [20] of Mr Roddy’s first affidavit). [I should note that, in its submissions, the respondent erroneously says that Mr Roddy said that Dr Clark said this to him (see Mr Roddy’s first affidavit at [20]). However, ultimately, that does not matter as, for current purposes, Dr Clark and Mr Currie are, in a sense, interchangeable as to acting on behalf of the respondent.]
A number of matters are of note. First, the evidence otherwise before the Court supports the view that there was no long term succession plan, as such, in place at SAH at the relevant times.
Second, even if the Court were to have given the applicant the leeway he sought to expand his attack to other employees of SAH that would not have assisted the applicant. In particular, their use of the phrase “do the same thing” following a recounting of their career progression at SAH on which the applicant says he relied as part of the representations made to him and linked to long term succession planning and that he would be given every opportunity to be promoted to senior management at SAH (see further below).
Third, the applicant’s evidence alleged against Mr Jacovak, Ms Behrens, Ms Duffy and Ms Lees, has been met in different ways by the respondent. Ms Lee’s evidence that she did not conduct an interview with Mr Roddy is neither here nor there on the matter of whether she said what is attributed to her. Except perhaps as to whether she was speaking conversationally and informally and, therefore, outside the scope of any authority from the respondent to make representations on its behalf to Mr Roddy. In any event, she did agree that she had a conversation in which she recounted her own career progression. Ms Behrens gave similar evidence. Ms Duffy agreed she could have said something to that effect, although she had no specific memory of doing so.
I note that no evidence was led by the respondent from Mr Jacovak. However, the conversation with Mr Jacovak deposed to by Mr Roddy in his first affidavit did not refer to succession planning, career progression or any other matter the subject of alleged representations by SAH. While the applicant asked the Court to draw an adverse Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 (“Jones v Dunkel”) inference in relation to the respondent’s failure to adduce evidence from, or explain its failure to call, Mr Jacovak, it is tolerably clear on the material before the Court and in the circumstances, that the respondent’s failure to adduce evidence from Mr Jacovak was because the conversation alleged to have taken place between him and the applicant was not material to any of the issues requiring determination by the Court. That is made plain by the respondent’s submission at [138](e) of its closing written submissions that:
“… The Jones v Dunkel inference raised is, with respect, wrong and silly. The Applicant does not plead any allegations in relation to the conversation with Mr [Jacovak]. There is no suggestion the Mr [Jacovak] had any involvement or authority to do anything in relation to the terms and conditions of the Applicant’s employment. The conversation is not significant and the absence of Mr [Jacovak] is not significant.”
This also supports the Court’s view about allowing the applicant to expand his case in the way outlined above. The respondent’s action in not calling Mr Jacovak to give evidence may also be explained by the fact that the impugned representations were said to be limited to Dr Currie and Mr Clark. The applicant’s reliance on Jones v Dunkel is, in these circumstances, not appropriate.
In his evidence, Mr Roddy states that, as a result of these various conversations, he formed the view that SAH had good succession planning. I accept that there was no evidence of a succession plan as such, however, the state of the evidence reveals that Mr Currie (and Ms Behrens, Ms Lee and Ms Duffy to some extent) spoke of their own careers and how SAH fulfilled their career aspirations.
I should note that Dr Clark’s evidence in cross-examination presents some difficulties for the applicant. It is the case that Dr Clark’s career appears to have followed a similar trajectory to the other SAH employees. However, it is important to note that, although in some respects he did not present as an impressive witness, he was not shaken on what was relevantly said in October 2008.
In these circumstances, Mr Roddy’s reliance on Dr Clark’s career progression with SAH to “being in a high position” ([16] of Mr Roddy’s first affidavit) did not emanate from any statement or representation made by Dr Clark himself. Rather, it arose from Mr Roddy’s perception of Dr Clark’s “progression” with SAH over a number of years.
I accept that Dr Clark did not refer to succession planning in his conversation with Mr Roddy. I also accept that no reference was made to his career path. However, I accept that some of the others, including, importantly, Mr Currie, made references to their own career paths in the context of “succession”. However, it must be said that some distinction can be drawn between Mr Currie and the others in terms of Mr Currie’s authority to speak on behalf of the respondent and the others who, although in various ways senior, plainly presented as employees rather than with the binding authority of senior management in relation to this issue.
In this regard and on this point, on balance, I accept Ms Lee’s evidence that she did not conduct an interview as alleged, but had a conversation while walking with Mr Roddy. This exemplifies the distinction between the more formal nature of the exchanges between Mr Roddy, Dr Clark and Mr Currie and the other SAH employees (relevantly, Ms Lee, Ms Duffy and Ms Behrens).
Having accepted that Mr Currie and some of the other SAH employees (in whatever context) did talk of their own career paths, it is important to note however, on an objective basis, just what was being said. That is what reasonably could be said to have been meant by what was said.
Mr Roddy says that, for example, by relaying their career progression it meant that SAH represented to him that he could “part of that” and that it was a promise of fulfilment of a predestined, or predetermined, career path. That may be what Mr Roddy subjectively thought, or felt, at the time, it may even be what he now thinks in remembering what occurred. However it is not, reasonably, what was represented by SAH. I do not accept that by Mr Currie, and, at best for the applicant, the other employees, making those statements it was represented to Mr Roddy that SAH saw him as fitting into some long term succession plan.
What is clear, in my view, is that what was being said by the various SAH employees was an introduction to their own professional background at the hospital and, in effect, that SAH had career opportunities. In context, as opposed to some rigid succession plan providing certainty of advancement or even employment. It was Mr Roddy’s hope that those opportunities could be extended to him. On any rational, or reasonable, view of the evidence, it cannot be said that this rose above such a proposition to be seen as some representation that SAH had a plan for Mr Roddy’s career progression and that what was being put to him was a firm offer of career advancement at the hospital. That was not represented to Mr Roddy by Mr Currie nor, at best for the applicant and more broadly, the other SAH employees.
There is a clear distinction here between an implied expression of possibility for the future and the offer of a certain future involving career progression and succession planning. Mr Roddy contended for the latter. I do not accept this. What is accepted, therefore, is that Mr Currie and other SAH employees (relevantly, Ms Lee, Ms Behrens and Ms Duffy), but not Dr Clark, did make statements as to their own career progression at SAH. However, I do not accept that by making those statements, it was represented to Mr Roddy that SAH saw him as fitting into a long term succession plan, let alone with the guarantee and certainty of a long term future that Mr Roddy now says he understood it to be.
Did the Respondent Represent That it Saw the Applicant as a Potential Candidate for the Chief Operating Officer or Chief Executive Officer Role?
It was unclear before the Court whether the applicant abandoned, or did not seek to press this particular to his claim. In his closing submissions (at [68]) the applicant did not contend that this particular had been made out. However, the respondent’s closing submissions addressed this particular and, in the circumstances, and given the uncertainty, I have addressed the particular as if it is still pressed by the applicant.
What is clear is that there is no evidence before the Court that either Dr Currie or Mr Clark, or any other employee of SAH, actually said to Mr Roddy that he was a potential candidate for the two highest positions in SAH (see below for the reference to Ms Behrens and Ms Lee). Those words were uttered by Mr Roddy himself.
The claim, therefore, that the representation was made relies on Dr Clark’s and Mr Currie’s alleged acceptance of, or acquiescence in, Mr Roddy’s comment. On balance, I accept Mr Roddy’s account of what was actually said in the sense of the words uttered. That is, the words around “CEO and COO”. The question however is whether that acquiescence represented to Mr Roddy that the respondent saw him as a potential CEO or COO?
Mr Roddy relied only on one piece of evidence for this contention. The relevant exchange is at [16] of his first affidavit:
“On or about 22 October 2008, at Sydney Adventist Hospital my family and I met with Dr Clark and Mr Currie at about 10.00am. A conversation took place with words to the effect of the following:
Dr Clarke:‘Where do you see yourself being in a few years time’
I said:‘I would like to be in a high position such as yours in the Hospital as CEO or COO.’
Mr Currie:‘We would give you every opportunity to ascend to those heights. We are always looking at succession planning.’
Dr Clark:‘It’s nice to see such talent with such capability and initiative.’”
The Submissions and the Shape of the Contract
The applicant argues that the respondent did not provide reasonable notice of the termination of his employment and, as a result, Mr Roddy suffered loss. The applicant seeks damages for breach of contract, pursuant to s.238 of the ACL.
As referred to above, Mr Roddy and SAH entered into a contract of employment, signed by Mr Roddy in January 2009. (In the statement of claim, Mr Roddy states that he entered into the contract on or about 17 December 2008, however Mr Roddy amended that evidence in cross-examination – see above at [50].)
The applicant asserts that, in March 2009, he and the respondent entered into another contract of employment involving the appointment of the applicant to the position of Manager of the PMO. Or, although not put in the alternative, an offer was made in March 2009, which came to fruition as a new contract sometime later. Probably, March 2010.
He argues that no “new” written contract was enacted. But that the changes in his duties were substantial in the relevant sense, and therefore gave rise to a “new” contract that replaced the previous one. The applicant contends that the change was such that it was not a mere variation of the original contract.
It was not clear before the Court what the applicant’s position was as to the date of the “new” contract. In the statement of claim, reference is made to the “March 2009 contract” ([15] of the statement of claim). In submissions before the Court the applicant says that he was offered, and accepted, the new position in March 2010.
That the relevant date was March 2009 is supported by Mr Roddy’s reliance on the statement that he attributes to Mr Currie, as made on 1 March 2009 (see his first affidavit at [31] and his acceptance of the “offer”). The March 2010 date is supported by the evidence that some of his duties actually changed around that time.
This confusion is not explained by the applicant whose submissions on this issue appeared to contend, and to argue interchangeably, that a “new” contract was entered into in March 2009 and in March 2010. No clear answer could be found in the applicant’s submissions as to when the “old” contract was supplanted and terminated by the “new” contract.
It would appear, therefore, that, at least as it relates to adopting the role and title of the “new” position, that that occurred in March 2010, not March 2009 such as to support the proposition that a new contract was entered into at that time which had the effect of terminating the existing contract. That is supported by the applicant’s submissions in reply (at [2](c)] that:
“[t]here was a ‘profound, gross or exceptional, far reaching’ change in the Applicant’s employment with the Respondent in March 2009. This change was formalised in March 2010. The effect of this is that the Applicant’s initial contract of employment with the respondent was determined and a new contract of employment with an implied term of reasonable notice arose.”
While it is the case that many of the duties said to have been given to the applicant appear not to have been implemented at the time (March 2009), or involved future action (e.g. setting up the PMO and planning and the like), I have ultimately taken the applicant’s complaint as positing March 2009 as being the time the contract came into effect, while acknowledging that certain “terms” of the contract did not come to “fruition”, or take physical shape or effect, until later, and including up to March 2010.
I note that the respondent, understandably and properly, looked to the applicant’s statement of claim where the allegation is that the applicant was promoted to manage the PMO in March 2009 and, at that time, given a pay rise and given staff to manage. That is the allegation that the respondent has addressed.
The evidence relied upon by the applicant is that, in the first half of 2009, the respondent appointed him to take charge of the PMO, as well as appointed him to the executive committee of SAH. The applicant relied on his evidence of what Mr Currie told him, including that it was a “new job”. The relevant characteristics, in support of his claim, were said to be the printing of (new) business cards and the supervision of other staff.
Further, the applicant argues that his role at SAH changed from a “mere” project officer dealing with “minor” projects to a senior manager of a “major” project with supervisory responsibility and a wide range, both internal and external, of liaison responsibilities. The duration of the project was said to be until 2022. Even further, Mr Roddy, initially, claimed that he was given a 10% pay increase which was beyond a “CPI increase”.
The applicant’s claim is that there were very exceptional and fundamental changes in his duties, including his responsibilities, and that those changes were not contemplated at the time of his original appointment. That was said, by the applicant, to be emphasised by the fact that the PMO did not exist in 2008 when he was originally offered employment.
The applicant also relied on cl.12 of the contract of employment, signed in January 2009, to argue that the development of the applicant’s duties was not, and could not, be seen as an alteration to the contract because any alteration, or variation, to his employment was required to be done in writing.
In support of his claim, the applicant referred the Court to, and relied on, a number of principles. First, where there is a substantial change in duties involving an employee already subject to a contract of employment, such change can amount to a termination of employment (Quinn v Jack Chia (Australia) Ltd [1992] VicRp 37; [1992] 1VR 567 (“Jack Chia”)).
Second, upon termination, the parties may enter into a new contract of employment with terms expressed, or implied, by law. In this context, subject to certain variables, the Court should be more ready to hold that a new contract has replaced the old contract (Jack Chia).
Third, though it was not made entirely clear, it appears the reliance on Meek v Port of London Authority [1918] 2 Ch 96 (at 100 per Swinfen Eady MR) and O’Connor v the Argus and Australasian Ltd (1957) VR 374 (per O’Bryan J) was for the proposition that, in certain circumstances, which the applicant says apply here, a “promotion” to a “higher grade at a higher salary”, creates a new contract of employment.
Fourth, the offer of a “greatly different position” to an employee may amount to a termination of employment and the entering into a new contract (Jack Chia).
Fifth, in these circumstances, the “old” term as to notice should not, as a matter of course, be imputed into the “new” contract (Jack Chia).
Sixth, where provision is made for a period of notice of termination, the law will imply a term that the contract is determined by reasonable notice (Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd [1986] HCA 14; (1986) 160 CLR 226 at 236-237 per Gibbs CJ, Mason, Wilson, Brennan and Dawson JJ; Rankin v Marine Power International Pty Ltd [2001] VSC 150; (2001) 107 IR 117 (“Rankin”) at [206] – [209] per Gillard J ). The relevant assessment is a question of fact (IOOF Building Society Pty Ltd v Foxedon Pty Ltd [2009] VSCA 138; (2009) 23 VR 536 at [78]; Rankin at [219]).
The applicant also relied on R v Industrial Commission of South Australia; Ex parte Adelaide Milk Supply Co-operative Ltd (1997) 16 SASR 6 at 8 per Bray CJ, Jones v Department of Energy & Minerals (1995) 60 IR 304 at 308 per Ryan J, Fosters Group Ltd v David Kou Tien Wing (2005) 148 IR 224; [2005] VSCA 322 at [36] per Habersberger J for the proposition that redundancy involves an employer no longer requiring a particular job to be done by anyone. Although, it must be said, it was not explained how this assisted his case. Noting that the challenge before the Court was not with the redundancy itself, but whether, as a result of the termination of his employment arising out of redundancy, he received reasonable notice of that termination.
Further, that an employer must give an employee “proper notice” of termination on redundancy (Fryar v System Services Pty Ltd (1996) 137 ALR 321 at 330; Lavings v Barclay Mowlem Construction (NSW) Ltd (1994) 99 IR 247 at 256; Sappideen, O’Grady, Riley, Warburton, Macken’s Law of Employment, LawBook Co, 7th edition, 2011 at [8.140] and [8.160]).
Consideration
As noted above, while it was not clear whether the applicant was relying on a change in the formal contract in March 2009 (as pleaded) or March 2010 (as ultimately submitted), I have taken the view that the applicant’s allegation is that the formal offer and acceptance of a new job was alleged to have occurred in March 2009 although elements of that new position did not come to fruition until March 2010.
One of the key elements relied upon by the applicant in support of his contention that his position formally changed in March 2009, and that a new contract was entered into at that time, was the increase in his salary. A number of things can immediately be said about that assertion.
First, the applicant claimed to have been given a salary increase of $12,000 upon being promoted to the position of manager of the PMO. That assertion of a salary increase can be seen from the following. First, in his affidavit, the applicant gave evidence that his “remuneration in the new role of PMO Manager” was $132,000 per annum plus superannuation ([33] of Mr Roddy’s first affidavit). That evidence was given in the context of his meeting with Mr Currie on 1 March 2009 (Mr Roddy’s first affidavit at [33]). In Sch.1 to the contract he signed in January 2009 the applicant’s remuneration is recorded as $120,000 (annexure “MJL -5” to the affidavit of Ms Lee).
However, at best for the applicant, if the “change” in his position was said to have occurred in March 2009, no salary increase occurred until July 2009. It was quite clear in cross-examination that no salary increase was given in March 2009 and the applicant ultimately conceded that his salary did not increase until July 2009.
Further, while the applicant initially asserted in cross-examination that he received a 10% increase in salary in July 2009, he ultimately conceded that his salary increase was 4.1% and that his salary could not have increased to $132,000 as deposed to in his first affidavit at [33]. That concession was in response to Ms Lee’s evidence (at [29] of her affidavit), which survived cross-examination, that:
“On 7 July 2009 Mr Roddy received a wage increased of 4.1% following the annual wage review. This 4.1% wage increase was an increase that was generally given all non-award employees for this year and was not specific to Mr Roddy.”
It is not clear, given the applicant’s evidence in cross-examination, why he continued to assert in written submissions (filed after the giving of his evidence) that “… He was also given a $10,000 pay rise that is beyond a CPI increase” (applicant’s submissions at [96]).
Finally, in cross-examination, the applicant agreed with the proposition put to him by the respondent’s counsel that the increase in his salary was reflective of his change in seniority. Given that the applicant also agreed that the increase in his salary was only 4.1%, that is, a result of an “annual wage review”, he cannot rely on any change in his income to assert that a substantial change in his seniority occurred at the relevant time.
In light of the above, the change in salary is not a matter that is available to the applicant in support of his claim before the Court.
An additional difficulty for the applicant is that, on the evidence, he did not adopt the “new” title of manager of the PMO in March 2009. His evidence before the Court was that he did not commence to refer to himself by his “new” title until March 2010.
It is important to note that even as at August 2009 when a formal review of Mr Roddy’s performance was completed, neither he, nor Mr Currie, changed his title from “Project Officer” (see Respondent’s Exhibit 1 – “RE1”- at page 1). The applicant’s evidence that he completed this part of the form in February 2009 still does not explain why he left that description unchanged, or without comment, when he signed the document on 5 August 2009.
Further, in answer to the question as to whether a contract was entered into in March 2009 with the effect of terminating the existing contract of employment, the applicant’s “post-contractual” conduct is relevant as to considering whether a contract was in fact formed (Brambles Holdings Limited v Bathurst City Council [2001] NSWCA 61; (2001) 53 NSWLR 153 at 164).
Here the respondent points to the applicant’s evidence, given in
cross-examination, that in 2011 he asserted in writing (annexure
“PDC-13” to the affidavit of Mr Currie) an entitlement that flowed from the January 2009 contract. At the least, as the respondent submits, it assists in evidencing the absence of the applicant’s intentions in March 2009, and for that matter any time subsequent to March 2009 and up to the termination of employment, to make a new contract as he now asserts.
The actual change to the applicant’s employment circumstances cannot have actually occurred in March 2009, other than some indication of future change and his involvement in bringing about that change. As it stood, at that time and based only on the conversations with Mr Currie, the only contemporaneously related evidence proffered of what occurred in March 2009 may indeed have been a proposal for a “new job”, in the sense of a “new” role in the existing job, and even one that would not come to fruition for at least another year. But the question remains whether there was a “profound”, “gross” or “exceptional” far reaching change in March 2009 (see Jack Chia).
I did not comprehend the applicant to assert than any change of job or duties of itself would amount to a “new” contract, and the termination of the existing contract upon the creation of a new one. Such a proposition, in any event, was not accepted in Jack Chia.
Rather the applicant argues that his “formal” promotion was variously a “significant”, “substantial”, “greatly different” or “very substantial” change (see authorities relied on by the applicant, generally at [51] – [55] of his written submissions and as set out at [249] – [256] above). That is, even if a “formal promotion” did not take place until March 2010, and not in March 2009.
Obviously, the Court has had regard to these authorities. But, it must be said that, the applicant’s partial reliance on Jack Chia raises the question as to why he did not also seek to explain, or explore, those parts of Jack Chia raised in the respondent’s submissions. In particular those raised at [113] of the respondent’s written submissions:
“While it is trite to say that a change in duties can amount to a termination of employment[1], the case law is clear that that such a change needs to be ‘profound’ or ‘gross’ or ‘exceptional, far reaching, not within the original contemplation of the parties and not contemplated by the contract initially made between them’[2]. The new position must be a ‘greatly different’ position to the previous position. To apply the spirit of Federated Mutual Insurance referred to in Quinn, the Applicant did not start as the office boy and finish as the manager of the company[3].”
[Footnotes included.]
[1] Submissions of the Applicant Jordan Roddy, 16 May 2012, ¶27 referring to Quinn v Jack Chia
(Australia) Pty Ltd [1992] 1 VR 567
[2] Quinn v Jack Chia (Australia) Pty Ltd [1992] 1 VR 567 at 576.50, 577.29 and 577.50 respectively.
[3] Quinn v Jack Chia (Australia) Pty Ltd [1992] 1 VR 567 at 576.15.
Regard must be had to what was actually contemplated by both parties in March 2009. The applicant’s evidence is that his “promotion” in March 2010, the adoption of the new title, and the printing of business cards and the like, was the culmination of what he had been “promised” in March 2009.
In this context, it is important to note that no “new” written contract was entered into, either in 2009 or 2010. Plainly, on its own, this is not fatal to the applicant’s argument now. But, Mr Roddy’s evidence that he did not raise with Mr Currie the need for a new contract because he did not believe that there was a need to do so, would support the respondent’s contention that no “new” contract (that is, “oral” contract) was entered into in March 2009.
Further, Mr Roddy’s evidence before the Court consistently pressed that he had been told of succession opportunities and the like by the respondent. This was plainly a part of what he said induced him to take up the position offered in late-2008. That situation (the contemplation of promotion) continued into 2009.
I agree with the respondent’s submission that there is a distinction between contemplation (by the applicant) of promotion within SAH and actual promotion to a specific position. The applicant is correct to submit that the PMO did not exist at the time he was offered employment in 2008 as a “project officer”. But, then again, it did not exist at March 2009. Nor for that matter March 2010. It was said to have come to “fruition” only in May 2010.
It is here that the distinction between March 2009 and March 2010 also becomes important. On balance, what Mr Currie offered Mr Roddy in March 2009 was, at best, the opportunity to participate in a process of developing the PMO concept, leading to its actual establishment at some future time. The matter of the printing of the business cards in March 2010 is one, albeit small, example of the actual creation of the PMO at some time in 2010, not 2009.
In short, therefore, the PMO was not established in March 2009. The applicant’s pleadings and submissions that the significant change occurred at March 2009, and is evidenced by Mr Currie’s statement to him, and the creation of the PMO not previously contemplated when he was offered employment at SAH, viewed in context and in light of the evidence, must be rejected.
That is further supported by other evidence from Mr Roddy and Mr Currie. In cross-examination, Mr Roddy was taken to his own evidence of the conversation on 14 October 2008 with Mr Currie and Dr Clark. He agreed, ultimately, with Mr Currie’s evidence that during the course of that discussion Mr Currie had said: “We are planning for a substantial building development program at the SAH. We will need some infrastructure project management skills – is this something that may interest you?” Mr Roddy had replied “Yes, it would”. (See Mr Currie’s affidavit at [10].)
In cross-examination, Mr Roddy sought to press the proposition that that occasion was a “meet and greet” for both parties and involved an hour (disputed by other evidence) “getting to know each other”. In essence, that it was a meeting in the nature of a “general introduction”. (Both Mr Currie and Dr Clark agree with this characterisation of the conversation.)
The applicant’s response was pressed in answer to the use of the words referred to above. That is, that although Dr Currie mentioned the major development program, it was a “passing” reference in a general introductory conversation.
The difficulty for the applicant however is that, at times, he also sought to rely in these proceedings, in part, on specific words in the same conversation attributed to both Mr Currie and Dr Clark. For example, going back to the earlier consideration, the references to “long term succession planning”. The applicant cannot have it both ways. If the conversation was only some general, genial introduction, then his reliance on some parts as a serious inducement to him accepting employment at SAH is not supported. Other evidence from the applicant that he did not rely on what was said in this conversation, other than to fly out to Australia with his family, only serves to confuse his position and expose inconsistency.
In my view, Dr Currie did refer to the major development project. In cross-examination, Mr Roddy ultimately accepted that Mr Currie had referred to “a substantial building project at SAH” in that conversation. The picture that emerges, therefore, is that, as at October 2008 when Mr Currie and Dr Clark had their various discussions with Mr Roddy, the substantial building development was within the contemplation of the respondent and, importantly, was communicated to Mr Roddy.
When Mr Roddy entered into the January 2009 contract of employment that state of affairs was encompassed within the discussion leading to, and including, that event.
Mr Roddy himself gave evidence (although partially denied, or not recollected, by the various persons) that in conversations with SAH employees on October 2008 there were references to, for example, the “many opportunities here” (per Mr Jacovak at [18] of Mr Roddy’s first affidavit). Mr Roddy gave evidence that on one occasion he told Ms Lee, on 22 October 2008, about his excitement “… about working here and to the opportunities Leon and Phillip have been telling me about” ([17] of Mr Roddy’s first affidavit). On Mr Roddy’s own evidence, those “opportunities” were only referred to in “general terms” in other conversations and only had specificity, in relation to the “substantial building project” in the discussion of 16 October 2008.
In my view, as communicated to Mr Roddy, the offer of employment at SAH was for a project officer with opportunity to work in an environment, ultimately, of substantial building development. While Mr Roddy may have commenced by working on relatively “minor” or smaller projects, what was encompassed in the agreement of January 2009 was inclusive of the project that came to have substance some time later. That is, his involvement in the major building development.
This view of the evidence is supported by Mr Roddy’s own evidence before the Court that his “job” (as at January 2009) included the planning and control of the development of allocated projects “from feasibility stage to hand over to the project sponsor, to achieve design and return on investment while ensuring end use satisfaction” (Sch.2 to the letter of employment sent to Mr Roddy on 17 December 2008 – annexure “MJL 5” to the affidavit of Ms Lee).
In my view, and on balance, the evidence presented is that no “new job”, as a distinct and separate entity, was created in March 2009. No PMO existed at that time such as it could be said that it have been created (noting that, in relation to the “new” position, Mr Roddy deposed, at [31] of his first affidavit, to Mr Currie saying, in March 2009, that “… We have established a new department called the Project Management Office and would like you to be the Manager…” [Emphasis added.]).
The applicant’s proposal that a “new” contract was made in March 2009 with the effect of terminating the “old” contract, and with features of a significant increase in salary and change in title, is simply not, for the reasons set out above, supported by the evidence.
Further, the issue for the Court is whether what relevantly occurred during 2009 and up to the “formal” creation of what is now described as the PMO were “profound” and “significant” changes.
This must also be seen in light of whether is could be said that at some point in 2009 or 2010 the changes to Mr Roddy’s employment became so significant and profound that they cast what was alleged to have occurred in March 2009 in a different light. That is, that at some unknown point, and certainly unidentified by the applicant before the Court, Mr Roddy’s role changed “significantly” and “profoundly” .
Relevant here is that the January 2009 contract described the applicant’s “duties”, as (Sch.2 to the Contract, Annexure “MJL - 5” of Ms Lee’s affidavit):
“The Project Officer is a key operational role that support infrastructure projects and general administrative operations throughout the Sydney Adventist Hospital. To plan and control the development of allocated projects, from feasibility stage to handover to the project sponsor, to achieve design and return on investment while ensuring end user satisfaction.”
Mr Currie’s evidence as to what transpired in March 2009 was that the direction offered to Mr Roddy was the “internal” project development. That fits with the description above.
The duties identified here, and as echoed under the subsequent heading of “specific accountabilities” have some important relevant features specific to the concept of project management (Sch.2 to the contract of January 2009 – Annexure ‘MJL – 5” of Ms Lee’s affidavit). Those specific accountabilities were:
“●Undertake feasibility analysis, including financial assessment of allocated projects.
● Research, prepare and present feasibility reports and finding to stakeholders as directed.
●Draft and present business cases that are complete (including budgets) for operational and project activities as directed.
● Administer design budgets and estimates for allocated projects and monitor project cost against budgets.
● Prepare and authorise project-programming schedules.
● Co-ordinate assigned projects to ensure they are in accordance with design and client requirements.
● Maintain communication with the project sponsor and end users at all stages of the project and resolve related problems in conjunction with appropriate staff/consultants/builders
● Undertake any operational activities as directed from time to time, even where such direction maybe outside the ordinary scope of the role of Project Officer.”
It cannot be said that in late 2009, or 2010, the applicant’s role was significantly different. He continued to have a “key operational role”, “to plan and control”, and was assessed against those existing key specific accountabilities. That is, the same key specific accountabilities as set out originally in his employment contract.
With reference to Mr Roddy’s employment review (RE1) it is the case that there are references in that document to Mr Roddy’s “transition” from project officer to “project manager” and that “Jordan’s role changed”. Those statements represent, in part, the evolution and development of the applicant’s employment during 2009 and beyond. That is, there were some changes to the applicant’s duties. But without anything further, that does not mean that the “changes” were not within the scope of his employment as a project officer.
Plainly, care needs to be taken with labels such as “project officer”. Mr Currie gave evidence that, at SAH, this term could cover work on a variety of tasks and projects and could include management of those projects. That evidence was not shaken.
Further, in his submissions the applicant has not satisfactorily answered the respondent’s summary as to why the duties in 2009 and 2010 were not significantly or profoundly different. The respondent says (at [122] of its written submissions):
“The Applicant’s duties in the second role were not profoundly different to his duties in the initial role. For example:
a. He was essentially employed as a project manager for the whole of his employment;
b. There was no monetary cap on the projects he initially worked on;
c. He didn’t even have business cards printed with his new title until May 2010;
d. He did not demand, nor was he given, a new job description at any time;
e. The Applicant assessed the 4.1% pay increase he received in July 2009 to be reflective of his change in seniority;
f. In his role as the Manager of the PMO he facilitated the development of the major project and was the interface on a daily basis between the external project management/construction team and SAH but was not the Project Manager per se (cf being the Project Manager on smaller projects);
g. He continued to report directly to Mr Currie rather than to the Board;
h. He didn’t hold any executive responsibility in either role. For example the time and effort spent in apparent conflict with Bovis Lend Lease was in collecting information and making recommendations for others to decide (i.e whether to engage BLL in whole or in part and so on).”
[Emphasis in original.]
Even further, the respondent submitted that there was no salary increase in March 2009, nor was Mr Roddy’s salary increased, commensurate with a “significant” change in duties, in late 2009. For the reasons set out above, I accept the respondent’s submissions in relation to the applicant’s salary. That is, that the applicant could not rely on a change to his salary such that it can be said that there was a “new” job that displaced the “old”. Not in 2009, nor in 2010.
In essence, in his argument to the Court, as expressed in his submissions, the applicant has confused the “significance” of the building project (its high costs and its volume etc) with a “significant” or “profound” change in the duties for which he was originally hired to perform. Ultimately, on the balance of the evidence, the substantial building project was “just” another project, albeit of some significant volume, for Mr Roddy to work on, plan, control, and support and, in that sense, manage.
Clause 3 of the contract of January 2009 , and as supported by the matters in Sch.2 to the contract, plainly permitted changes to Mr Roddy’s duties (annexure “MLJ-5” to Ms Lee’s affidavit):
“YOUR DUTIES
Your duties are those as set out in Schedule 2 as amended from time to time and such other duties as may be reasonably required by SAH.”
The “changes” that occurred in late 2009 and 2010 were within the scope of that contract. I agree with the respondent that, on the evidence, what changed was the direction of Mr Roddy to a different specific project and the application of his duties within the scope of the project. That is, the application of his duties changed, not his duties themselves.
For the reasons set out above, I agree with the respondent that while a “change” of direction occurred (as described immediately above in [302]), the intention of the parties at relevant times was that the contractual terms put in place as at January 2009 continue as at March 2009, March 2010 and beyond. Regardless of when the applicant was told about his appointment to the “Manager PMO” role and when he achieved recognition of that title, what remains is that there was no displacement of the terms of the January 2009 contract. That is because there was no substantial or significant alteration to the scope of Mr Roddy’s employment responsibilities.
On this basis, when the applicant’s position no longer required filling, and he became redundant or superfluous to SAH’s requirements, he was entitled to the notice for the termination of his employment as set out in that contract. That entitlement was met. The applicant’s contention as to the “reasonable notice” that he claims should be applied to him is not made out.
Conclusion
The applicant has not made out his case. I should just note that the presentation of the applicant’s case before the Court lacked precision, attention to detail and relevant explanations. It is not for the Court to make out the applicant’s case for him. In any event, it is appropriate that his application be dismissed. I will make the appropriate order. I will hear the parties on costs if necessary.
I certify that the preceding three hundred and five (305) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate:
Date: 21 December 2012
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