Samantha Smith v HPA Services Pty Ltd T/A Henny Penny, Anthony Cincotta, Employee Relations Strategies Pty Ltd, Steve Champion
[2023] FWC 1142
•15 MAY 2023
| [2023] FWC 1142 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Samantha Smith
v
HPA Services Pty Ltd T/A Henny Penny, Anthony Cincotta, Employee Relations Strategies Pty Ltd, Steve Champion
(C2023/1116)
| DEPUTY PRESIDENT SAUNDERS | NEWCASTLE, 15 MAY 2023 |
General protections application involving an alleged dismissal – whether applicant was dismissed – application dismissed.
Introduction
On 1 March 2023, Ms Samantha Smith lodged an application pursuant to s 365 of the Fair Work Act 2009 (Cth) (Act) for the Fair Work Commission (Commission) to deal with a general protections dispute involving a dismissal. The first respondent to the dispute is Ms Smith’s former employer, HPA Services Pty Ltd (HPA).
Ms Smith contends that HPA contravened one or more of the general protections provisions in dismissing her from her employment. HPA raised a jurisdictional objection to the application. HPA contends that it did not dismiss Ms Smith.
The Commission must determine whether Ms Smith was dismissed before it can exercise powers under s 368 of the Act to deal with a dispute about whether Ms Smith was dismissed in contravention of the general protections.[1]
On 9 May 2023, I conducted a hearing in relation to the question of whether Ms Smith was dismissed by HPA. Ms Smith gave evidence in support of her contention that she was dismissed. Mr Anthony Cincotta, Managing Director of HPA, and Ms Bronwyn Nott, Area Manager for HPA, gave evidence for HPA.
Dismissal
The question of when a person has been dismissed is governed by s 386 of the Act. It relevantly provides:
“(1) A person has been dismissed if:
(a) the person’s employment with his or his employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or his employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or his employer.
(2) However, a person has not been dismissed if
(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or
(b) the person was an employee:
(i) to whom a training arrangement applied; and
(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;
and the employment has terminated at the end of the training arrangement; or
(c) the person was demoted in employment but:
(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and
(ii) he or she remains employed with the employer that effected the demotion.”
At the hearing, Ms Smith’s solicitor expressly disavowed any reliance on s 386(1)(b) or s 386(2)(c) of the Act. Ms Smith’s contention is that she was dismissed within the meaning of s 386(1)(a) of the Act. She contends that her employment was terminated on HPA’s initiative.
General principles
The expression termination “on the employer’s initiative” in s 386(1)(a) is a reference to a termination of the employment relationship and/or termination of the contract of employment[2] that is brought about by an employer and which is not agreed to by the employee.[3]
In circumstances where the employment relationship is not left voluntarily by the employee, the focus of the inquiry under s 386(1)(a) is whether an action on the part of the employer was the principal contributing factor which results, directly or consequentially, in the termination of the employment.[4]
Where the conduct of an employee amounts to a renunciation of the contract of employment, it is the conduct of the employee that terminates the employment relationship.[5] Renunciation is a species of repudiation which entitles the employer to terminate the employment contract.[6] The difference between renunciation and repudiation was explained by Gleeson CJ, Gummow, Heydon and Crennan JJ in Koompahtoo Local Aboriginal Land Council v Sanpine Pty Limited[7] as follows (references omitted):
“In its letter of termination, Koompahtoo claimed that the conduct of Sanpine amounted to repudiatory breach of contract. The term repudiation is used in different senses. First, it may refer to conduct which evinces an unwillingness or an inability to render substantial performance of the contract. This is sometimes described as conduct of a party which evinces an intention no longer to be bound by the contract or to fulfil it only in a manner substantially inconsistent with the party's obligations. It may be termed renunciation. The test is whether the conduct of one party is such as to convey to a reasonable person, in the situation of the other party, renunciation either of the contract as a whole or of a fundamental obligation under it… Secondly, it may refer to any breach of contract which justifies termination by the other party... There may be cases where a failure to perform, even if not a breach of an essential term … manifests unwillingness or inability to perform in such circumstances that the other party is entitled to conclude that the contract will not be performed substantially according to its requirements. This overlapping between renunciation and failure of performance may appear conceptually untidy, but unwillingness or inability to perform a contract often is manifested most clearly by the conduct of a party when the time for performance arrives. In contractual renunciation, actions may speak louder than words.”[8]
Abandonment of employment is an example of renunciation. It occurs where an employee ceases to attend his or her place of employment without proper excuse or explanation and thereby evinces an unwillingness or inability to substantially perform his or her obligations under the employment contract.[9]
Relevant facts re alleged dismissal
In late 2015, Ms Smith commenced employment with HPA. Her initial role was Trainee Manager. At the commencement of her employment Ms Smith was provided with a written letter of offer dated 9 December 2015. It relevantly provides:
“It is with pleasure that I confirm our offer of Trainee Manager (part time) with Henny Penny. As a part time employee, you are engaged on an hourly rate and paid for work on a weekly basis. Please read and sign this letter. Once this is done please contact our area manager who will allocate you your starting date, first shift and store location.
…Human Resources Policy Manual:
Acceptance of this offer confirms your undertaking to accept and abide by the company policies and procedures. These are found in the Company’s Policy Manual. It is up to you to be familiar with the policies covered in the manual and which may change from time to time.
Copies of these policies will be given to you upon request or by other alternative arrangements with the Company.
It is our aim to encourage teamwork, personal growth and development amongst our staff. We hope you enjoy your association with us.
…Declaration:
I understand that I am employed as a Trainee Manager. The employment conditions applicable to me are those received in my Information Pack and spelt out in the attached letter of offer and as otherwise specifically advised to me in writing by the Company. As a Trainee Manager, I understand that I will be offered a contract of employment with Henny Penny.
…If you wish to take up this position, sign the letter of offer then call the Area Manager, Bronwyn, who will advise where to drop the signed document. Bronwyn will also confirm a start date, a commencement time and which store, thank you and welcome to Henny Penny.”
Ms Smith signed the letter of offer and provided it to HPA.
Ms Smith also signed a document entitled ‘Company Employment Agreement’ on 2 December 2015. It relevantly provides:
“- I have familiarised myself with the Company’s Rules and Regulations (attached) and I shall abide by them at all times. I agree to follow all Policies & Procedures, Methods of Operations and OH&S Guidelines as set out in the OH&S Booklet.”
One of the documents provided to Ms Smith as part of her ‘Information Pack’ at the commencement of her employment with HPA was a Henny Penny Operations Manual. I am satisfied that this document is the ‘Company’s Policy Manual’ within the meaning of the letter of offer. Ms Smith read the Operations Manual when it was provided to her. It relevantly provides:
“4.2 COMPANY POLICIES
I.Management of Managers is defined to include Store Managers, Assistant Managers, Trainee Managers, Duty Managers and Crew Chief.
…
xii.Management must be prepared to transfer and manage any Henny Penny outlet…”
The Operations Manual remained in force during Ms Smith’s employment with HPA.
At the commencement of her employment with HPA, Ms Smith was also provided with a document governing ‘Company Rules & Regulations’, “Company Policies’, and ‘Personal Hygiene Guide’. It relevantly provides:
“2) COMPANY POLICIES
…
·Staff members may be required to do shifts at other company stores...”
Ms Smith was initially assigned to work as a Trainee Manager at HPA’s store in Belmont, a suburb of Lake Macquarie. The Henny Penny Belmont store was closed down about one year after Ms Smith commenced employment with HPA. As a result, in February 2017 Ms Smith moved to HPA’s Henny Penny store in Warners Bay, another suburb of Lake Macquarie. The Warners Bay store was located approximately 6.9km away from the Belmont store. Ms Smith’s position (Trainee Manager), duties, remuneration and terms and conditions of employment did not alter when she transferred from the Belmont store to the Warners Bay store. The other employees at the Belmont store transferred to either Warners Bay or a different store in the Newcastle or Lake Macquarie area when the Belmont store closed.
When Ms Smith’s traineeship finished, she was given the title of Duty Manager and continued to work at the Warners Bay store. Ms Smith cannot recall whether her remuneration was increased at the time her title changed to that of Duty Manager. There was no discussion or communication with Ms Smith about any different terms and conditions applying to her position as Duty Manager, compared to her previous position as Trainee Manager.
After about two years in the role of Duty Manager, Ms Smith was given the title of Assistant Manager and continued to work at the Warners Bay store. Ms Smith cannot recall whether her remuneration was increased at the time her title changed to that of Assistant Manager. There was no discussion or communication with Ms Smith about any different terms and conditions applying to her position as Assistant Manager, compared to her previous position as Duty Manager.
After about one year in the role of Assistant Manager, Ms Smith was given the title of Store Manager and continued to work at the Warners Bay store. Ms Smith does not believe that her remuneration was increased at the time her title changed to that of Store Manager. There was no discussion or communication with Ms Smith about any different terms and conditions applying to her position as Store Manager, compared to her previous position as Assistant Manager.
HPA’s Henny Penny stores are open from 10am until approximately 9pm, seven days a week. There are two shifts per day over those hours of operation. Each shift requires a Manager. Each Manager in a store has at least two days off per week. Other Managers are required to work on those days. Ideally, HPA has at least three Managers working at each of its stores: a Manager for each shift, and another Manager that works on their days off. HPA considers that all Manager positions in each store are equivalent. HPA does not differentiate between Managers, other than by their level of experience. It considers all Managers working in the one store to be ‘co-Managers’.
The Managers who work in each of HPA’s Henny Penny stores are responsible for the work roster in that store. They have autonomy to roster their own hours, subject to ensuring that there is appropriate coverage by Managers across the operating hours of the store.
Ms Smith worked with a range of other Managers when she worked as a Manager at the Henny Penny stores in Belmont and Warners Bay.
On 20 December 2022, Ms Nott had a meeting with Ms Smith and the other employees at the Warners Bay store. Ms Nott informed the employees that the Warners Bay store was closing due to the end of the lease. Ms Nott offered each employee the opportunity to transfer to another HPA Henny Penny store of their choice. To that end, Ms Nott provided the employees with a piece of paper which included the name and number of each employee, and provided a space for each employee to provide their preferred Henny Penny store where they would like to work after the Warners Bay store closed.
In December 2022, HPA’s other Henny Penny stores were located at Adamstown, East Maitland, Edgeworth, Raymond Terrace, Salamander Bay, Thornton and Wallsend. The Adamstown store is located approximately 8.5km from the Warners Bay store, and is approximately 30% larger than the Warners Bay store in terms of staff members and turnover. The Adamstown store is located approximately 6.9km away from Ms Smith’s home address. The Warners Bay store was located approximately 2.2km away from Ms Smith’s home address. In order to catch a bus from Ms Smith’s home address to the Henny Penny store in Adamstown, she would have to walk about 15 minutes to the bus stop and then travel on the bus for about 25 to 30 minutes. In order to catch a bus from Ms Smith’s home address to the Henny Penny store in Warners Bay, she would have to walk about 2 minutes to the bus stop and travel on the bus for about 8 minutes.
Ms Smith spoke to Ms Nott in the days after the announcement on 20 December 2022. Ms Nott told Ms Smith that she wanted her to stay in the business. Ms Nott asked Ms Smith to consider which alternative store would suit her best. Ms Smith said that she would look into it.
On 27 December 2022, Ms Smith provided Ms Nott with a medical certificate which stated that she was only fit to work 20 hours per week. Ms Smith had aggravated a non-work related injury to her back which she sustained as a teenager. In December 2022, Ms Smith was classified as a part time employee but she was rostering herself to work at least 38 hours per week at the Warners Bay store because she needed the money to pay for her expenses. On receipt of the medical certificate, Ms Nott told Ms Smith that it was not a problem for her to reduce her hours to 20 per week on the roster Ms Smith prepared for the Warners Bay store.
In respect of the period from the provision of the medical certificate to the closure of the Warners Bay store on 2 January 2023, Ms Smith was paid 20 hours per week for the hours that she worked and about 18 hours per week as paid sick leave.
On 28 December 2022, Ms Smith told Ms Nott that she did not want to resign but she could not get to any other Henny Penny store to work. Ms Nott does not drive and is reliant on public transport to travel to and from work. Ms Nott told Ms Smith that she did not want to her resign; she had looked at the bus timetable and there was room for her to get to work at another store; but if Ms Smith’s decision was to resign, then she should put it in writing. I accept Ms Nott’s evidence that she does not prepare separation certificates and she did not speak to Ms Smith about a separation certificate. I am satisfied that Ms Nott did not ask Ms Smith to resign and did not pressure her to resign. Ms Nott believes that Ms Smith is a good worker and Ms Nott wanted her to continue working in HPA’s business. In the result, Ms Smith did not inform Ms Nott that she was resigning or had resigned.
On 29 December 2022, Ms Smith attended her last shift at the Warners Bay store. This was the last occasion on which Ms Smith performed any work for HPA.
Save for Ms Smith, all HPA’s employees who worked at the Warners Bay store were transferred to the Adamstown store or the Edgeworth store when the Warners Bay store was closed. No employees were retrenched.
On 29 December 2022, Mr Cincotta sent an email to Ms Smith in the following terms:
“Hi Sam,
Just caught up with Bronwyn and she explained your travel concerns in relation to a transfer to another store, but also said that you do not wish to leave Henny Penny.
I have followed up Bus Timetables and are you aware that there is a regular bus service from Mount Hutton to Adamstown which would fit in with any Roster.
We can also accommodate your Roster to suit but according to the way we read the Timetable, it may not be necessary.
On checking the Bus route times, we think it is entirely reasonable for you to be able to relocate to Adamstown Henny Penny considering it is under 30 minute travel time.
Sam, after 7 years at Henny Penny, we don’t want to see you go so, could you kindly indicate if there is any other reason you do not wish to take up the transfer so we can discuss it?
Give me or Bronwyn a call to discuss.
Thanks Sam.
Tony”
Ms Smith did not respond to Mr Cincotta’s email of 29 December 2022, nor did Ms Smith respond to Ms Nott’s request that she inform HPA of which Henny Penny store she wished to move to after the Warners Bay store closed.
On 5 January 2023, Ms Smith instructed her representative to send an email to Mr Cincotta in which several contentions were stated, including that Ms Smith would not be resigning and any communications should be directed to Ms Smith’s representative.[10] Ms Smith’s position that she would not resign prevailed at all times during the balance of her employment with HPA.
On 2 February 2023, Ms Nott left a voicemail message for Ms Smith and asked whether Ms Smith would like to receive paid annual leave during her absence from the workplace. Ms Smith was paid her accrued annual leave but it was not sufficient to cover the whole of her absence from the workplace from 2 January 2023 until the cessation of her employment on 27 February 2023.
On 6 February 2023, HPA lodged a dispute in the Commission in connection with the closure of the Warners Bay store and its impact on Ms Smith. On 9 February 2023, I conciliated the dispute but did not settle it.
On 13 February 2023, a letter was sent to Ms Smith from HPA’s industrial relations adviser. It relevantly provides:
“…1. Offer of Ongoing Employment at Henny Penny
In reality this is not an offer of ‘new’ employment, but ongoing employment in your current role, but at a different location to your previous store at Warners Bay, which obviously has ceased trading.
You will receive the same salary as you have been receiving and your role will be of the same status as Store Manager, at an alternative store of your choosing. To date, discussions have focused on our Adamstown store, as this seems to be the closest and easiest for you to travel to and based on our investigations, it would seem that the total additional travel time would be between 26 and 52 extra minutes per day, including walking time, to get to and from Adamstown and your current residential address.
As previously advised to you in Tony Cincotta’s email to you dated 29 December 2022, your employer can accommodate your roster to suit your public transport arrangements if required. Please let us know if you would like to discuss this aspect.
We have always wanted you to continue working with us in your current role but at another convenient store location, but discussions to make this clear have been difficult due to the instructions we received that we were not to speak to you directly.
…This offer remains open until 5pm on this coming Wednesday, 15 February 2023…”
Later on 13 February 2023, Ms Smith’s representative, Mr Miles Heffernan, sent an email to HPA’s representative in which he requested “redeployment offers with full terms and PD [position description] as requested and required under s 119 and 120 of the FWA”.
By email sent at 11:51am on 14 February 2023 from HPA’s representative to Mr Heffernan and Ms Smith, they were relevantly informed as follows:
“Miles
…Also, in terms of the formal written offer regarding Samantha’s employment, it is in fact the same role but simply at a different work location most convenient for Samantha. It is certainly not clear to us that she is covered by the redundancy provisions of the Act, otherwise we would be adhering to those requirements.
Samantha,
We are just reaffirming that your employer wants you to continue in your store manager role at another nearby location of your choice. If you have any queries or concerns, please contact either Bronwyn or Tony as soon as possible so they can be discussed.
We note that the alternative offers we have made will remain open until 5pm Wednesday 15 February 2023, unless you request and we agree to an extension.”
Mr Heffernan responded by an email sent at 4:20pm on 14 February 2023 in the following terms:
“Dear Mr. Champion,
You were going to specifically address the dual manager role - which you have not.
Please address this. It is a new role - a shared role and one that needs to be explained as it relates to a de-skilling or loss of status.
As for your failure to understand what "without prejudice" privilege is, or the word "private" written into statute, it is not for me to attempt to bridge that chasm in trying to clear that up.
Our client cannot consider the offer until the dual role is further developed with a PD, reporting lines, and how a shared duality works in practical terms.
Please provide in accordance with your client's duties with re-deployment and noting that if it does not, then this will weaken any potential s 120 application in the future, should Ms Smith not deem the offer acceptable.
For completeness, please provide:
1. Only offers of redeployment;
2. the terms, contract, PD / role description of those offers;
3. the remuneration including as it relates to hours banking or overtime; and
4. the start and finish times and days of work.Kind regards
Miles Heffernan”
HPA’s representative provided the following response to Mr Heffernan at 2:41pm on 15 February 2023:
“Samantha and Miles.
In accordance with standard practices at Henny Penny, the work performed, the hours worked and start and finish times will be as agreed between Samantha and the existing other manager, who at present is sick in hospital. If there is ever disagreement, then Bronwyn Nott and Tony Cincotta can get involved in order to resolve things, if required, although this would be a very rare need. However, we reiterate that our expectations of you are the same as you performed at Warner’s Bay, simply at a different location nearby to where you live.
Samantha, you are also reminded that Tony Cincotta has previously offered to you in his email dated 29 December 2022 to accommodate your roster to suit your travel requirements, if necessary.
The company hasn’t used position descriptions in the past, as they aren’t required given to the nature of how the business operates. In other words, Samantha’s job remains the same as she was working prior to the forced store closure. It is just to be at a different location, of her choice. If Samantha would like to draft a position description she feels comfortable with, then we encourage her to do so.
In terms of banking of hours, we confirm that the choice of whether to ‘bank’ hours (Time Off In Lieu) remains Samantha’s sole choice, as it has been in the past, in accordance with the award. Her employer can simply pay Samantha for overtime worked from when she starts at the new location, should this be her preference. Samantha, please advise your preference here – do you prefer to –
·bank your additional overtime hours worked to be taken as time off in lieu at the penalty rate equivalent,
·be paid overtime when you work it, or alternatively
·make your decision on this as it arises from time to time?
Miles, you keep making reference to redeployment, which is probably relevant if there is a redundancy. Samantha is being offered to change work location to a store of her choosing nearby, which is in accordance with company policies located in the Operations Manual in-store, as well as Samantha’s original employment contract.
Regards,
Steve Champion, Director”
At 4:31pm on 16 February 2023, Mr Heffernan provided the following response to HPA
“Dear Mr. Champion,
DirectorMs. Smith's Response to the Offer of Redeployment
We continue to act for Samantha Smith.
1. Ms. Smith has weighed the various materials in considering the offer of redeployment to a co-store manager.
2. Ms. Smith has weighed the issues around additional travel on public transport, combined with her back injury and the co-manager role which is, a loss of status.
3. Ms. Smith is disappointed that no position description was provided to assess and this negatively impacted Ms Smith's assessment of the acceptability of the alternative employment.
4. Ms. Smith's minimum wage negatively impacted her assessment of the acceptability of the alternative employment, as the extra travel is regressive on her overall life amenity, given she is being required to travel somewhere between 30 and 70 additional minutes per day, making the cost and time impact on her more significant than higher paid employees, as she cannot afford a car.
5. With relation to Ms. Smith's back injury and related symptoms, Ms Smith's assessment of the acceptability of the alternative employment, this reference to the IME has negatively impacted the assessment.
6. Ms. Smith submits that where an employer is in doubt about an employee’s available medical evidence, it is for an employer if they wish to seek further medical evidence about an employee, to direct that employee to an alternative medical practitioner or to undergo an independent medical examination at the employer’s cost, where it is reasonably necessary and made in a reasonable way: Grant v BHP Coal Pty Ltd (No 2) [2015] FCA 1374. See also State of Queensland v Attrill & Anor [2012] QCA 299 at [33]-[34] citing Goldberg J in Thompson v IGT (Australia) (2008) 173 IR 395; Marshall v Commonwealth of Australia (Represented by the Bureau of
Meteorology) [2012] FMCA 1052 (19 November 2012).
7. However, there should be no doubt about this and the first step was to ask Ms Smith's treating doctor(s).
8. Ms. Smith also weighed that the employer has refused to pay her personal leave since 4 January 2023.
9. Finally, in assessing the offer, Ms. Smith negatively assessed that her employer refused to pay her while this consultation process took place, including only yesterday paying annual leave, despite her begging for weeks to not be placed in hardship.
10. Ms. Smith does acknowledge that this is not a subjective test, but rather an objective test.
11. Objectively, having regard for the totality of the offer of redeployment, it is not acceptable in form for someone with Ms. Smith's characteristics and circumstances.
12. Ms. Smith respectively declines the only offer of alternative employment as it is not acceptable.
13. Our shared email for opponent communication is [email protected] and the litigation support team are available from 7:30 am to 7:30 pm AEST.Kind regards
Miles Heffernan”
At 3:30pm on 17 February 2023, HPA’s representative provided the following response, in tabular form, to Mr Heffernan and Ms Smith:
“Supportah Statement Employer Response 1. Ms. Smith has weighed the various materials in considering the offer of redeployment to a co-store manager. 2. Ms. Smith has weighed the issues around additional travel on public transport, combined with her back
injury and the co-manager role which is, a loss ofstatus.
Samantha was already working part-time hours due to a previous decision she had made regarding her preferred working hours. We reiterate that she would be of the same status as in her previous role. The current existing manager is not at work at present due to a health issue and Samantha is needed at Adamstown store. 3. Ms. Smith is disappointed that no position description was provided to assess and this negatively impacted Ms Smith's assessment of the acceptability of the
alternative employment.
Samantha has never had a formal position description and already shared her store management duties with other employees who were her Assistant Managers. 4. Ms. Smith's minimum wage negatively impacted her assessment of the acceptability of the alternative employment, as the extra travel is regressive on her overall life amenity, given she is being required to
travel somewhere between 30 and 70 additional minutes per day, making the cost and time impact on her more significant than higher paid employees, as she cannot afford a car.The checking we have done shows that
door to door, the additional travel time is between 26 and 52 minutes per day, total. We can share our sources with you. We note that Samantha has advised us in the past that the reason she doesn’t drive is her anxiety she suffers during driving exams.5. With relation to Ms. Smith's back injury and related symptoms, Ms Smith's assessment of the acceptability of the alternative employment, this reference to the IME has negatively impacted the assessment. Before we were sent the medical
certificate, Samantha never raised any issues about her back with us. It is difficult to understand how the limited additional time spent sitting on a bus
would affect her ability to accept the
transfer to the new location.6. Ms. Smith submits that where an employer is in doubt about an employee’s available medical evidence, it is for an employer if they wish to seek further medical evidence about an employee, to direct that employee to an alternative medical practitioner or to undergo an independent medical examination at the employer’s cost, where it is reasonably necessary and made in a reasonable way: Grant v BHP Coal Pty Ltd (No 2) [2015] FCA 1374. See also State of Queensland v Attrill & Anor [2012] QCA 299 at [33]-[34] citing Goldberg J in Thompson v IGT (Australia) (2008) 173 IR 395; Marshall v Commonwealth of Australia (Represented by the Bureau of Meteorology) [2012] FMCA 1052 (19 November 2012).
The Centrelink medical certificate her
employer was supplied with, limited Samantha’s work time to 20 hours per
week from the part-time hours she was already working at her election. The
certificate expires 21/2/23. On the face of it, it does not prevent Samantha from travelling to work on buses.7. However, there should be no doubt about this and the first step was to ask Ms Smith's treating doctor(s).
That may have been valid if the medical certificate applied to Samantha’s travel to work, which it doesn’t seem to address.
Her employer had accepted that Samantha, would only be rostered to work 20 hours until after 21/2/23 in accordance with the certificate.8. Ms. Smith also weighed that the employer has refused to pay her personal leave since 4 January 2023.
Samantha hasn’t been paid because she
has not provided advice to her employer as to her preferred work location, which is nothing to do with personal leave.9. Finally, in assessing the offer, Ms. Smith negatively assessed that her employer refused to pay her while this consultation process took place, including only yesterday paying annual leave, despite her begging for weeks to not be placed in hardship.
Samantha has not responded to earlier
calls from her Operations Manager Bronwyn Nott. You formally requested
annual leave during discussions around
the Conciliation proceedings and this was put into effect as soon as practicable. We have continuously reminded you that the reason Samantha is not being paid is her refusal to nominate a work locationafter her previous store closed.
10. Ms. Smith does acknowledge that this is not a subjective test, but rather an objective test.
We presume you are referring to whether there has been a redundancy. Yes, it should be an objective test. 11. Objectively, having regard for the totality of the offer of redeployment, it is not acceptable in form for someone with Ms. Smith's characteristics and circumstances.
The offer was for Samantha to relocate to a nearby store of her choosing. As we disclosed during the Conciliation
proceedings, we understand the additional travel time to be as little as 26 minutes per day total, or 52 minutes using Samantha’s calculations.
The company policy manual, including
the one that would have been in-store at Warner’s Bay, makes clear that,
“Management must be prepared to
transfer and manage any Henny Pennyoutlet.”
12. Ms. Smith respectively declines the only offer of alternative employment as it is not acceptable.
We have unsuccessfully attempted a more conciliatory approach to dealing with Samantha’s dispute with her employer, but as this dispute has dragged on for an extended period of time despite our best efforts, we must now direct Samantha to work at our Adamstown store, where there is a significant gap in management
of the store due to the absence of the
current store manager.
Unless Samantha is to indicate she is
currently still on paid annual leave, we
direct that she will make herself
available to work at the Adamstown
store immediately and no later than
from Tuesday, 21 February, 2023. We can agree on a start time with Samantha to suit her reasonable particular circumstances and travel requirements, as has been previously offered to her.
Samantha should contact her employer to discuss her preferred start time to ensure it is acceptable. An email reply expressing her preferences and with at least 24 hours advance notice, would suffice.
Alternatively she can call her employer if she would like to commence work but inside the notice period.
Failure by Samantha to attend work in
accordance with this lawful direction will be treated as such, unless of course she has a reasonable excuse, proof of which should be supplied in accordance with the award and general employment law principles.13. Our shared email for opponent communication is [email protected] and the litigation support team are available from 7:30 am to 7:30 pm AEST.”
Later on 17 February 2023, Ms Smith instructed Mr Heffernan to reply to HPA in the following terms:
“a. “The mischaracterizing of redundancy is becoming embarrassing.
b. Your client has made our client redundant.
c. Our client is ready willing and able to work at her store, but it no longer exists.
d. Your client's order is not lawful or reasonable.
e. Your client must now give notice.
f. Your client must pay severance or apply under s 120 of the FWA.
g. This conduct of the employer is to coerce Ms Smith into not exercising multiple rights
and to separately misrepresent those rights under s 345 of the FWA.
h. Your client, its director, Employee Relations Strategies Pty Limited, and you as a
natural person are all jointly and severally put on notice that if you do not apply the
workplace right of redundancy and backpay Ms Smith or otherwise dismiss her, then
there will be four respondents on the inevitable General Protections Dismissal and
separate GPND.
i. Your advice and position are so misconceived that it is either knowingly so or imbecilic and reckless.”
On 22 February 2023, HPA sent a letter to Ms Smith in the following terms:
“Dear Samantha,
Re: Direction to Attend Work
On 17 February at 2.30pm, our representatives Employee Relations Strategies Pty Ltd emailed you and your representatives (Supportah Pty Ltd) to indicate on behalf of we your employer, HPA Services Pty Ltd (trading as Henny Penny) –
“Unless Samantha is to indicate she is currently still on paid annual leave, we direct that she will make herself available to work at the Adamstown store immediately and no later than from Tuesday, 21 February 2023.”
Your representatives responded at 4.05pm, including advice that our representative’s “advice and position are so misconceived that it is either knowingly so or imbecilic and reckless”.
However, we make clear our position that a transfer from one store location to another does not at law necessarily mean you have been made redundant, something we have confirmed by seeking legal advice on the point.
Additionally, our company Operations Manual states at 4.2 Company Policies (page 20) that, “Management must be prepared to transfer and manage any Henny Penny outlet.” This practice is also consistent with your move some years ago from the Belmont store to Warners Bay, before you became a manager.
The closure of the Warners Bay store was unfortunate and not something that we wanted to happen and were unable to prevent.Once this position of the store closure became clear, this information was shared with staff at Warners Bay, including yourself. All employees at Warners Bay were asked by Bronwyn to nominate an alternative store location that they wished to work at and to put their choice in writing.
You have failed to nominate the store location you wish to work at, despite repeated requests from us for you to do so. As the Warners Bay store had closed, you obviously could no longer work at that location and as you have not made yourself ready, willing and available to work at another location, we have not been able to roster you elsewhere.
We have researched the additional travel times to the nearest store to your home, being
Adamstown. Our enquiries reveal total additional travel time of between 26 and 52 minutes per day for you to travel to that location. We also offered to you via email on 29 December, 2022 that, “We can also accommodate your Roster to suit” the bus services that operate in the area, even though that may not even be necessary, given the bus timetables we have viewed.
As confirmed by us in writing, your role would remain as Store Manager, on the same pay and equivalent status as at Warners Bay. Despite the fact there would be 2 store managers at Adamstown, we have always been open to discussing with you to explain how this would work in practice, as it is an arrangement that operates successfully at other stores, where there are multiple managers because of the demands of your employer’s operations.
In addition, our store manager at Adamstown has been absent from work recently due to some ongoing health issues and it is likely you would be the sole store manager, at least initially, in any event.
Please contact Bronwyn or myself if you need to further discuss and clarify how work arrangements would operate with 2 store managers working in the one store if the other manager was to eventually return.
Additionally, given your choice of working reduced part-time hours at Warners Bay, this means there would already be a need for additional managerial resources, in addition to the absence from work of the existing store manager.
Direction to Attend Work
Whilst our email to you on 17 February 2023 made clear that you were being directed to attend work at our Adamstown store location immediately and no later than yesterday Tuesday, 21 February 2023, we want to give you one more chance to comply with our lawful direction, so we will now give you 2 more days from today Wednesday 22/2/23 in order to comply with our direction to attend work. We do this because we have always believed we have enjoyed a good working relationship with you and perhaps you have been guided by advice that isn’t in your best long-term
interests.
Therefore, you must contact Bronwyn or myself immediately to arrange for you to be rostered at Adamstown, by no later than from Saturday 25 February 2023. Again, we confirm our previous advice that we can agree on a start time with you to suit your reasonable circumstances and travel requirements.Failure by you comply with this lawful direction from us as your employer, means your employment may be considered to have terminated by way of frustration. We clearly want to retain you in your role as store manager at another nearby location (Adamstown), which is objectively reasonable.
Again, you are actively encouraged to speak to us in regard to your working arrangements, so that your employment can resume as soon as possible.
Yours faithfully,
Anthony Cincotta”
Ms Smith did not comply with the direction to attend work at the Adamstown store.
On 27 February 2023, HPA sent a letter to Ms Smith in the following terms:
“Dear Samantha,
Re: Termination of your Employment due to Frustration
On 17 February at 2.30pm, our representatives Employee Relations Strategies Pty Ltd emailed you and your representatives (Supportah Pty Ltd) to indicate that on behalf of us as your employer, HPA Services Pty Ltd (trading as Henny Penny) -
"Unless Samantha is to indicate she is currently still on paid annual leave, we direct that she will make herself available to work at the Adamstown store immediately and no later than from Tuesday, 21 February 2023."
Again, we wrote to you on Wednesday 22 February 2023, to again state that we would give you 2 more days from Wednesday 22/2/23 in order to comply with our direction to attend work.
You were to contact Bronwyn or myself immediately to arrange for you to be rostered at Adamstown, by no later than from Saturday 25 February 2023. Again, we confirmed our previous advice that we could agree on a start time with you to suit your reasonable circumstances and travel requirements.
As you have failed to comply with this lawful direction from us as your employer, and as your representatives have made abundantly clear in their email response at 2.52pm on 22/2/23 that you would not comply with our direction, we now advise that your employment is considered to have terminated by way of frustration.
You were also actively encouraged in our communications to you to speak to us in regard to your working arrangements, so that your employment could resume as soon as possible, but unfortunately you have not taken the opportunity to do so.
We will calculate any outstanding termination payments and provide a pay summary for your information and advise you when these payments have been made.
We wish you well in your future endeavours.
Yours faithfully,
Anthony Cincotta”
Mr Cincotta prepared the termination letter with assistance from his representative. Mr Cincotta gave evidence that he used the word “frustration” in the termination letter but the real reason for the cessation of Ms Smith’s employment was because she had refused to comply with what Mr Cincotta believed was a lawful and reasonable direction for Ms Smith to work at the Adamstown store. Mr Cincotta’s understanding is that this constitutes an abandonment by Ms Smith of her employment with HPA.
Ms Smith does not believe the direction for her to work at the Adamstown store was a lawful or reasonable direction. Ms Smith believes that it was an attempt to remove any potential right she had to a severance payment, notice and long service leave. Ms Smith contends that HPA used a term of her contract of employment to unilaterally change the location of her employment when a term of the applicable award said otherwise. Ms Smith believes that she did not abandon her employment and never frustrated her employment contract because her “employment contract, on the term in issue, provided for less than the award”.[11] Ms Smith also believes that HPA manufactured her conduct as being the cause of the cessation of her employment, rather than the ending of the lease over the store in Warners Bay which HPA knew about at least six months before January 2023.[12]
Ms Smith maintains that her employment ended by means of redundancy and its cessation was not at her initiative.[13]
Consideration re dismissal
The terms of an employee’s contract are important in determining the job in which the employee is or was employed and whether the employee has been terminated from that job. The issue was explained in the following way by a Full Bench of the Australian Industrial Relations Commission in Re Rubber, Plastic & Cable Making Industry (Consolidated) Award 1983[14] in the context of a redundancy situation:
“The reference to ‘the job’ is primarily a reference to the physical and mental tasks carried out for the employer, but aspects of the work, including location of the work, are not excluded from consideration as elements of the job. In a different statutory context there is a somewhat similar usage of the term under the United Kingdom Employment Protection (Consolidation) Act 1978 under which written particulars must be supplied to employees of the terms of employment, including "the title of the job which the employee is employed to do". There “‘job’ means the nature of the work which the employee is employed to do in accordance with his contract and the capacity and place in which he is so employed.”
For the location of employment to be accepted as an element of the job for the purposes of testing a redundancy situation, performance of work at a particular location needs to have been a term of the particular employment. A relocation of the work to be done in the course of employment may then justify a determination that the employer no longer wishes the job to be done if the relocation is unilaterally determined and is of such a degree that it is effectively a unilateral repudiation of the contract of employment. A relocation will not be in breach of the contract of employment if transferability within employment is an express or implied term of the original contract of employment, or if there has subsequently been a consensual variation of the terms of employment by agreement expressly made between the parties or able to be implied through conduct of the employer and employee.”
The contract of employment entered into by Ms Smith with HPA did not state that she would be employed at any particular location. The letter of offer does not make any reference to a particular Henny Penny store. It says that if Ms Smith accepts the offer then HPA’s Area Manager will allocate Ms Smith’s “starting date, first shift and store location”. Further, Ms Smith agreed (a) by signing the offer letter to “undertake to accept and abide by the company policies and procedures … [and] to be familiar with the policies” and (b) by signing the ‘Company Employment Agreement’ to “follow all Policies and Procedures, Methods of Operations…” One such policy, a copy of which was given to Ms Smith at the commencement of her employment as part of the Operations Manual, required Ms Smith, as a Manager, to “be prepared to transfer and manage any Henny Penny outlet.” The language pertaining to company policies in the letter of offer, ‘Company Employment Agreement’ and the policies themselves reflects an intention to offer and accept mutual obligations.[15] So much is clear from language such as “your undertaking to accept and abide”, “agree to follow”, and “Management must be prepared to”. The content of the relevant policy also consists of a precise obligation on Managers to “be prepared to transfer and manage any Henny Penny outlet”.[16] Contrary to the submissions advanced on behalf of Ms Smith, the language of the relevant policy is not aspirational. The aspirational language to which Ms Smith points is at the foot of the letter of offer where HPA expresses its “aim to encourage teamwork, personal growth and development amongst our staff.” This does not bear on the content of the relevant policy or the undertaking given by Ms Smith to “accept and abide by the company policies and procedures”. Having regard to all the circumstances, I am satisfied that a reasonable person in the position of HPA would conclude that Ms Smith intended to be contractually bound by the promise she gave to abide by HPA’s policies, including her obligation to “be prepared to transfer and manage any Henny Penny outlet”.[17]
It follows that it was a term of Ms Smith’s employment with HPA as a Manager that she “be prepared to transfer and manage any Henny Penny outlet.” Notwithstanding the change in Ms Smith’s title from Trainee Manager to Duty Manager to Assistant Manager to Store Manager, all those titles fit within the definition of “Manager” contained in the company policy which forms part of the Operations Manual.[18] Further, the evidence as to the role of Managers generally within HPA’s Henny Penny stores and the limited nature of the changes associated with Ms Smith’s progression through the various management titles establishes to my satisfaction that these changes were not so fundamental or far reaching that they fell outside the original contract entered into by Ms Smith with HPA in December 2015.[19] In the result, I am satisfied that during her employment with HPA Ms Smith continued to be bound by a contractual obligation to “be prepared to transfer and manage any Henny Penny outlet.” There might be some ambiguity as to whether the reference to “any Henny Penny outlet” was objectively intended to include any Henny Penny store in Australia or in some other country. But that ambiguity does not need to be resolved in this case, for there is no doubt that a reasonable person would construe the expression “any Henny Penny outlet”, in the context of Ms Smith’s employment with HPA, to include HPA’s other Henny Penny stores in the Newcastle area.
HPA directed Ms Smith to transfer and manage a Henny Penny outlet, namely the Henny Penny store located in Adamstown. Indeed, before giving that direction to Ms Smith, HPA offered Ms Smith the opportunity to select the Henny Penny store to which she would like to be transferred on the closure of the Warners Bay store. There is no doubt that Ms Smith neither selected a store to be transferred to nor did she attend work, or agree to attend work, at the Adamstown store. Ms Smith’s conduct in this regard constituted a renunciation of her contractual obligations – specifically, of the fundamental obligation as a Manager employed by HPA to “transfer and manage any Henny Penny outlet”. That obligation was fundamental because HPA operates a business in which it has seven Henny Penny stores in the Newcastle region, its business requires that it be able to deploy its Managers to manage any of its stores in that region, and Ms Smith’s job with HPA was not limited to a particular store or location. The conduct of Ms Smith conveyed a refusal to work in accordance with the promises given in her contract of employment and the policies with which she agreed to abide by. Put another way, Ms Smith abandoned her employment by refusing to work at the Adamstown store.[20]
Although HPA’s termination letter informed Ms Smith that her “employment is considered to have been terminated by way of frustration”, HPA expressly disavowed any reliance on the legal concept of frustration in these proceedings. The letter of termination explains that the reason for the cessation of Ms Smith’s employment with HPA was her refusal to comply with the direction to work at the Adamstown store.[21] It is therefore clear that by sending the letter of termination to Ms Smith, HPA accepted Ms Smith’s repudiation of her contract of employment.[22] It was Ms Smith’s renunciation which effectively brought the employment relationship between herself and HPA to an end. This is not a case in which it was action on the part of HPA that was the principal contributing factor which resulted, directly or consequentially, in the termination of Ms Smith’s employment. The fact that the Warners Bay store closed meant that Ms Smith, along with the other employees who worked at the Warners Bay store, would need to be transferred to another Henny Penny store. It was action on the part of Ms Smith in refusing to be transferred to the Adamstown store that was the principal contributing factor which resulted in the termination of Ms Smith’s employment.
Ms Smith’s refusal to work at the Adamstown store, or any other Henny Penny store operated by HPA in the Newcastle area, was such to convey to a reasonable person in the position of HPA that Ms Smith had repudiated her duty to meet her obligations under her contract of employment.[23] In contrast, HPA’s conduct leading up to the cessation of Ms Smith’s employment would have led any reasonable person to conclude that it had a genuine desire for Ms Smith to continue to work it its business as a Store Manager. So much is clear from the offer to Ms Smith to choose a store to which she would be transferred after the closure of the Warners Bay store, the repeated offers and directions for Ms Smith to work at the Adamstown store, even after HPA and Mr Cincotta had been threatened by Ms Smith with prosecution if they did not dismiss her,[24] and the invitation for Ms Smith to select the hours that she would be rostered to work at the Adamstown store.
Because Ms Smith was contractually obliged to “transfer and manage any Henny Penny outlet”, I do not need to consider Ms Smith’s arguments that it was not reasonable to direct her to work at the Adamstown store. In any event, for the sake of completeness, I will address those arguments. The Adamstown store is located about 8.5km from the Warners Bay store and about 6.9km away from Ms Smith’s home address. Using public transport, as Ms Smith does, the travel time from her home address to the Adamstown store would have been about 40 minutes. Ms Smith would have been able to roster her shifts as a Store Manager to ensure that she would not have any significant waiting periods before a bus was scheduled to take her to or from work at the Adamstown store. Having regard to all the circumstances, I am satisfied HPA issued a lawful and reasonable direction to Ms Smith to work at the Adamstown store. Ms Smith had a very short travel time from her home address to the Warners Bay store (about 10 minutes). The travel time to the Adamstown store was not as short but was still reasonable in the context of travel to and from work in a major Australian city.
The position in which Ms Smith was directed to work at the Adamstown store had the same title (Store Manager), remuneration, status, and terms and conditions as her position at the Warners Bay store. I do not accept the argument that there was a diminution in the status of the role at the Adamstown store by reason of there being another person with the title of Store Manager working in that store. The Adamstown store is larger in terms of revenue and staff than the Warners Bay store. The operational requirements of the Adamstown store warrant two Store Managers working at that store. HPA often has more than one Store Manager working in its stores. If there is more than one Store Manager, they work at different times, on different shifts. Further, the other Store Manager at the Adamstown store was absent from work due to health difficulties at the time Ms Smith was directed to work at that store, with the result that she would have been the sole Store Manager, for some period of time at least, at the Adamstown store.
I reject Ms Smith’s contention that the term requiring her to “transfer and manage any Henny Penny outlet” was inconsistent with a term of the Fast Food Industry Award 2020 (Award). Clauses 28 and 29 of the Award impose an obligation on an employer to consult with affected employees if the employer proposes to change the regular roster or ordinary hours of work of an employee, or the employer makes a definite decision to make major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees. Significant effects are defined to include the need for employees to be retrained or transferred to other work or locations. Accepting that HPA had an obligation under the Award to consult with Ms Smith about its decision to close the Warners Bay store and transfer her to the Adamstown store, the obligation to consult did not confer on Ms Smith a right to reject the transfer to the Adamstown store, nor did it limit or prevent HPA from exercising its contractual right to require Managers such as Ms Smith to “transfer and manage” other Henny Penny outlets.
I reject Ms Smith’s contention that she was dismissed for serious misconduct or misconduct. The evidence does not support this contention. The reason for the dismissal was Ms Smith’s refusal to work at the Adamstown store. Such conduct is not serious misconduct or misconduct. It is conduct which constitutes a refusal to work in accordance with an obligation on HPA’s Managers to “transfer and manage any Henny Penny outlet”.
I also reject Ms Smith’s contention that HPA was obliged to dismiss her when it closed the Warners Bay store. Changes in an employer’s operational requirements sometimes mean that a job, not an employee, is made redundant because the employer no longer wants that job performed by anybody. That is not this case, because it was an important element of Ms Smith’s job as a Manager that she be willing and able to “transfer and manage any Henny Penny outlet”. Ms Smith’s job was not made redundant. Even if a job is made redundant, that does not automatically lead to the termination of the employee’s employment. The employee may be able to be redeployed to another job and thereby maintain their employment. This is the purpose of the consultation and redeployment obligations which are imposed on many employers by industrial instruments. An employer does not have an obligation to dismiss an employee just because its operational requirements change.[25]
At the hearing, Ms Smith’s solicitor expressly withdrew any reliance on the concept of severability of part of a contract or misrepresentation in connection with irrelevant terms of Ms Smith’s contract, such as public holiday loadings.
Conclusion
For the reasons given, Ms Smith’s employment with HPA was not terminated on HPA’s initiative and she was not dismissed within the meaning of s 386 of the Act.
Because Ms Smith was not dismissed, her general protections application involving a dismissal must be dismissed. Accordingly, Ms Smith’s application under s 365 of the Act is dismissed.
DEPUTY PRESIDENT
Appearances:
Mr S Dryley-Collins, Solicitor, for the Applicant
Mr T McDonald, Solicitor, for the Respondent
Hearing details:
2023.
Newcastle
9 May.
[1] Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152 at [67]
[2] NSW Trains v James[2022] FWCFB 55 at [45]
[3] Mohazab v Dick Smith Electronics Pty Ltd [1995] IRCA 625; (1995) 62 IR 200
[4] Mohazab v Dick Smith Electronics Pty Ltd [1995] IRCA 625; (1995) 62 IR 200
[5] Abandonment of Employment [2018] FWCFB 139 at [21]; Visscher v The Honourable President Justice Giudice (2009) 239 CLR 361 at [69] and [81]; NSW Trains v James[2022] FWCFB 55 at [62]; Bourke & Ors v OS MCAP Pty Ltd[2022] FWCFB 178 at [46]-[53]
[6] Abandonment of Employment [2018] FWCFB 139 at [21]
[7] [2007] HCA 61
[8] At [44]
[9] Abandonment of Employment [2018] FWCFB 139 at [21]
[10] Court Book at p 401
[11] Ex A1 at [48]
[12] Ex A1 at [51]
[13] Ex A1 at [70]
[14] [1989] AIRC 528; (1989) 31 IR 35 at 48-49; applied in DL Employment Pty Ltd v AMWU[2014] FWCFB 7946 at [41]
[15] Riverwood International Australia Pty Ltd v McCormick (2000) 177 ALR 193 at [106]-[107] and [147]
[16] Ibid at [98]-[103] and [151]
[17] Goldman Sachs JB Were Services Pty Ltd v Nikolich (2007) 163 FCR 62 at [23]
[18] Court Book at p 189
[19] Westen v Union des Assurances de Paris (1996) 88 IR 259 at 261
[20] Abandonment of Employment [2018] FWCFB 139 at [21]
[21] Court Book at p 357
[22] Ex A7 at p 328
[23] Bourke & Ors v OS MCAP Pty Ltd[2022] FWCFB 178 at [48]
[24] Ex A1 at [40]; Court Book at p 389
[25] Unsworth v Tristar Steering and Suspension Australia Limited [2008] FCA 1224 at [27]
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